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T xi e: 



CONSTITUTIONALITY 

AND 

LEGALITY 

OF 

CONFISCATIONS 

IN FEE, 

Under Act of jlily 17, 1862. 



"Their right and constitutional power to do so cannot be even plausibly 
controverted." — Court of Claims. Per Chief Justice Casey. 



By L. MADISON DAY. 



NEW ORLEANS. 
1870. 



.]]27 



THE CONSTITUTIONALITY AND LEGALITY 

OF 

CONFISCATIONS 

IKT FEE. 



1. Congress has poiver to conf scale the property of rebels and 

traitors, in fee, for treason. 

The provision of the Constitution, Art. Ill, sec. 3, par. 

2, which says : " The Congress shall have power to declare 
the punishment of treason ; hut no attainder of treason 
shall work corruption of blood or forfeiture, except during 
the life of the person attainted," has reference 07ihj to at- 
tainder as at Common Law. This is evident from the fact 
that Congress is expressly inhibited by the Constitution 
from passing a bill of attainder. Art. I, sec. 9, par. 3. 
For it would be absurd to say tliat the power given to Con- 
gress by the Constitution to prescribe the punishment of 
treason could, by any possibility, have any reference what- 
ever to an attainder of treason ibr life, by legislative act, 
when it is expressly declared in that same Constitution that 
" no bill of attainder or ex post facto law shall bo passed." 

And as Congress is thus prohibited by the Constitution 
from passing a bill of attainder of any kind, it is very evident 
that there can be no attainder under the Constitution, except 
as a resulting consequence from a sentence of death for 
treason. 

In England, an attainder for treason was had in one of 
two ways : First, by bill of attainder ; second, by virtue of 
a sentence of death (or outlawry, which is equivalent) — that 
is, an attainder as a co isequence resulting from a sentence 



of death (or outlawry) tor treason. Now, as the first of 
these two ways of effecting an attainder is expressly prohib- 
ited by the Constitution, it follows, irresistibly, that the 
attainder of treason, corruption of blood, <S:c., mentioned 
in the Constitution, could only be had or Ijrouglit about, as 
a resulting consequence, as at Common Law, from a sentence 
of death, for, that universally conceded highest of crimes, 
treason. 

An attainder of treason, then, as mentioned in the Con- 
stitution, only relates to attainder as at Common Law. And, 
by the Common Law, a man was said to be attainted only 
when sentence of death was passed upon him. Attainder 
was a consequence resulting from a sentence of death ; and 
corruption of blood and forfeiture of the I'eal estate of the 
offender followed (as a matt.r of course) from a'ttainder. 
And these consequences of an attainder at Common Law ex- 
tended in perpehnnn. But the framers of the Constitution 
thought that the demands of public justice would be suffi- 
ciently satisfied, in the absence of express legislation on the 
subject, by tying up tlie C()rru})tiuu of blood and the forfeit- 
ure of estate, as a resulting consequence from an attainder 
of treason, to the lifetimq of the party attainted. Hence, the 
constitutional provision that no attainder of treason shall 
work corru})tion of blood or forfeiture, except during the 
life of the person attainted. See 2 Sprague, 140-1. 

Congress has, therefore, power to confiscate the property 
of rebels and traitors, in fee, for treason. 

And to fully understand and comprehend this im})ortant 
question, it is necessary to bear in mind that the Common 
Law forms tlie basis of the Constitution and laws of the 
United States. 1 Gallison's Rep., 48'J ; 1 Baldwin's R., 
559 ; 2 Pet., 144 ; 5 Pet., 241 ; 8 Pet., 659 ; 3 Pet., 446. 

Tiie histoiy of the times^ too, is to be considered, in giving 



a construction to the Constitution. 12 Pet., 657, 721 ; 18 
How., 2*72. And when well-known terms of the Common 
Law are used in the Constitution or Statutes of the United 
States, and are not defined in the same, they are to be un- 
derstood in the sense in which they were known and used 
in the Common Law. 2 Day's R., 211, 212, 1Y6 ; 3 Wheat., 
610, 630 ; 18 How., 280, 272, 311, 313, 307. 

These propositions being fully established, let us recur to 
the provision of the Constitution which says : " The Congress 
shall have power to declare the punishment of treason ; but 
no attainder of treason shall work corruption of blood, or 
forfeiture, except during the life of the person attainted." 
Now, the word attainder has a well-known signification and 
meaning in the Common Law, and that is the immediate, 
inseparable_, resulting consequence from a sentence of death, 
for treason or other felony. 4 Bl. Com., 380, 381, 386, 
388 ; 1 Stephen's Com., 408, 411 ; 4 Steph. Com., 198, 199, 
446, 448, 452, 454; 1 Mes. & W., 145; Whart. L. Diet., 
Attainder. Attainder follows as a consequence from the 
sentence of deatli. And corruption of blood and forfeiture 
of estate follow as consequences from an attainder. There 
is no attainder until sentence of death, or that which is 
equivalent, (as outlawry,) is passed. And "all the forfeit- 
ures of real estate created by the common law " follow '• as 
consequential upon attainders, by judgment of death or 
outlawry." 4 Bl. Com., 386. But "the forfeitures in 
cases of treason and felony are no part of the judgment." 
Ih. "They are the consequences of such judgment." lb. 
And this is further manifest from the fact that " by the 
Common Law such lands " (that is lands of which the party 
was seized in fee) " were not vested in the actual possession 
of the king during the life of the ofi'ender." 3 Co. 10; 
Stampf. P. C, 191; Leon. 21; Bro. Coron., 208, 210; 4 



Bouv. Bac. Ab., 339. But the forfeiture of personal prop- 
erty follows, as the immediate resulting consequence, from a 
conviction for treason or other capital felony. 4 Bl. Com., 
387. Of course, then, the forfeiture of the personality was 
no part of nor any consequence of the judgment. And it is 
said that the personality was given to the king immediately 
on the conviction, (that is, "a man is said convict before he 
hath judgment ; as if a man be convict by confession, ver- 
dict, or recreancie," Co. Litt., 390 b.,) '* for the trouble and 
charge he has been at in holding courts and bringing the 
offender to justice." 4 Bouv. Bac. Ab., 340 ; 1 Com. Dig., 
(Day's ed.,) 406, note n. And all these consequences were 
a part of the Common Law. 1 Steph. Com., 410 ; 2 Bl. Com., 
384; 2 Kent's Com., 505, 10th ed. ; 2 St. Const., § 299. 
The provision, then, of the Constitution in relation to the 
punishment of treason is not a limitation of the power of 
Congress. It merely declares that the resulting conse- 
quences from any judgment for treason shall not produce a 
forfeiture of real property beyond the life of the party. It 
docs not say Congress shall not have power to confiscate the 
property of traitors beyond the term of their natural lives ; 
it merely says, " but no attainder of treason shall work cor- 
ruption of blood, or forfeiture, except during the life of the 
person attainted." Now, the word hut is a participle, and 
is equivalent in the sentence to except, and the true sense of 
the j)aragra})h is that Congress shall have power to declare 
the punishment of treason, except that attainder of treason, 
that is, that tlie inevitable and inseparable consequence 
resulting from a mere sentence of death or other punishment 
for treason, shall not " work," that is, bring about, produce 
as an inseparable consequence therefrom, a forfeiture of real 
estate beyond the life of the party attainted. It simply 
prescribes, in the absence of Congress making any express 



provision as to forfeiture of real estate for treason, that on 
the party receiving sentence under such law as might be, 
enacted by Congress, the resuUing consequence therefrom 
(which at Common Law would be an attainder, and a conse- 
quential corruption of blood and forfeiture of real estate) 
should not produce of itself a forfeiture of real estate beyond 
the lifetime of the offender. It therefore follows, that this 
provision of the Constitution, does not limit the power of 
Congress to punish treason to a forfeiture of the real estate 
for the term only of the life of the traitor ; and that it has 
no application whatever to personality, because the person- 
ality was forfeited immediately by the Common Law on con- 
viction, and before an attainder was had. 

And this is further evinced from the fact that Congress, in 
1*790. after providing the penalty of death as the punish- 
ment for treason, made the following provision in the same 
act: '' Provided always, and be it enacted, that no convic- 
tion or judgment for any of the offences aforesaid shall work 
corruption of blood and forfeiture of estate." 1 U. S. Stat., 
117, sec. 24. 

Now, this shows clearly that Congress at that early period 
considered that a forfeiture of real estate for life would fol- 
low^ in the absence of this provision, as the immediate insep- 
arable consequence from a sentence of death under the act. 
It also shows that, notwithstanding the constitutional provi- 
sion in regard to attainder, they believed that there would 
be a forfeiture of personality as at Common Law, upon a con- 
viction merely, witliout an attainder. If such were not the 
case, then the above section of the act of 1790 was a useless and 
unmeaning piece of legislation. What necessity was there (as 
the penalty of death was all the punishment prescribed by 
the act of treason) to provide " that no conviction or judg- 
ment for any of the offences aforesaid shall work corruption 



of blood or any forfeiture of estate," unless Congress consid- 
ered that forfeitures as to personality would take place upon 
conviction merely, and that corruption of blood and for- 
feiture of real estate in fee would follow, as at the Common 
Law, unless expressly restricted and excluded by the statute? 

Judge Sprague, (2 Sprague's R., 140,) with direct refer- 
ence to this proviso, has well said: " The proviso declares 
that no conviction shall work corruption of blood or any 
forfeiture of estate. This shows that the law gives thought 
that death was a sufficient penalty, without confiscation fol- 
lowing as a legal consequence of conviction. There is an 
analogous provision in the Constitution, Art. Ill, sec. 3, and 
as it has embarrassed some minds, it deserves attention." 

It is, therefore, clear that Congress believed there would be 
the resulting consequence of attainder and corruption of 
blood and forfeiture of real estate for life upon the sentence 
merely of death for treason_, and a forfeiture of personal 
property upon conviction of that offence^ and hence they 
provided there should be no mere consequential or resulting 
corruption of blood and forfeitures. And contemporaneous 
construction is entitled (as said by the Supreme Court) to 
the highest consideration. 18 How., 279-80. The fact, too, 
that Congress can pass no bill of attainder, shows that the 
framers of the Constitution only had reference to attainder 
as at Common Law. Sec. 9, par. 3^ Art. I, Const. In no 
other way was it possible, with such a provision in the Con- 
stitution, for an attainder to be had. Congress being ex- 
pressly prohibited from passing any bill of attainder, cor- 
ruption of blood and forfeiture of estate could only be 
worked or brought about as at Common Law. And the 
above provision can refer to no other mode or way of bring- 
ing about an attainder. Nor is it any answer to this position 
to say, because there are no Common Law offences as against 



the United States, the above reasoning does not apply. The 
question is not whether there are Common Law offences of 
the United States. But tlie true inquiry is^ what was 
meant by the fraraers of the Constitution? How did they 
consider the matter in question at that time ? Did they be- 
lieve that there wou'd be the Common Law consequences of 
attainder and forfeiture of estate, on a sentence of death? 
for treason ? The very terms of the Constitution as to 
attainder, as well as the provision in the act of 1790, show 
that both the framers of the Constitution and the members 
of that early Congress believed and considered that there 
would, at least, be Common Law consequences resulting from 
a conviction as well as from a sentence of death for treason, 
unless restricted by the Constitution and the law. 

If such was not the fact, there would hive been no occa- 
sion for the constitutional provision, as Congress was pro- 
hibited by the Constitution from passing any bill of attain- 
der, and no necessity whatever for the proviso in the act, 
which only prescribed the penalty of death as the punish- 
ment for treason. 

Besides, there has been great diversity of judicial opinion 
as to whether or not there were Common Law offences of 
the United States. Mr. Justice Story, in the case of the 
United States v. Coolidge et al., (1 Gall. R., 488,) in a most 
learned and elaborate opinion, held that there were Com- 
mon Law offences of the United States. True, this was 
afterwards overruled by the Supreme Court, (1 Wheat. R.^ 
415,) on the authority of the case of the United States v. 
Hudson & Goodwin, 7 Cranch R., 32. But it is to be no- 
ticed that botli these cases passed in the Supreme Court 
without argument ; and in the case in 1 Wheat., 415, there 
was a difference of opinion among the judges, and they were 
willing to hear the question argued, but adhered to their 



former opinion, because no counsel, beside the Attorney 
General, a})pcaretl to argue the question. Sucli liaving been 
the diversity of judicial opinion, and such the legislation of 
Congress, and such the prohibition of the Constitution in 
relation to attainder by Congress, it is fair to })resume the 
franiers of the Constitution, in providing against the con- 
sequences of attainder, were guarding against what they 
believed would be a Common Law consequence of attainder. 

And this is further evinced from the fact that the words, 
"work a forfeiture,"' have also a well known meaning and 
signification in law. They are, then, to be understood, in 
construing the above clause in the Constitution, according 
to that well-known meaning and signification which is to 
bring about or produce as a resulting consequence. When, 
therfore, it was provided in the above clause in the Consti- 
tution that " no attainder of treason shall work corruption 
of blood or forfeiture," &c., it was most clearly not in- 
tended to abridge the previously unlimited power given to 
Congress to provide for the punishment of treason, but a 
declaration and a provision that no attainder of treason 
should bring about or produce as a consequence in law a 
forfeiture beyond the period of the life of the person at- 
tainted ; and this construction is well sustained and fully 
warranted by the authorities. 

In 2 Kent's Com., 19^ top page, 11th ed.. Chancellor 
Kent, in speaking of Calvin's case and the legal conse- 
quences resulting from a division of empire, well says : 
" The principle of the Common Law contained in that case, 
that the division of an empire worked no forfeiture of pre- 
viously vested rights of property, has been frequently ac- 
knowledged in our American tribunals^ and it rests on the 
solid foundations of justice.'" Here it is seen that it was the 
division simply of empire that worked or produced no for- 



9 

feiture of property. The language used cannot, by any 
possibility, be lield or construed to mean that there was no 
power anywhere that might or could have produced a for- 
feiture of previously vested rights of property. 

Again, in note («) to 2 Kent, top page 489, lltli ed., 
in referring to what had been decided in certain cases re- 
ferred to, it is said : " The doctrine is, that a recovery in 
damages of the value of a specific chattel does not of itself 
work a change of title, and transfer it to the defendant or 
his vendee, without satisfaction of the value found." 

Here it is seen that the words, " work a change of title," 
have reference to the resulting consequences which flow from 
the recovery of damages as the value of a specific chattel. 

And in Governor of Georgia v. Madrazo, 1 Pet., 128, Mr. 
Justice Johnson says : " Madrazo was not privy to that of- 
fence," (that of introducing slaves into the United States,) 
" and was innocent of any act that could work a forfeiture of 
his interest." 

So Sir William Scott's language in T/te Jonge Tobias, 1 
Rob.^ 329, will serve to illustrate the construction for which 
we contend. He there said : *■' Formerly, according to the 
old practice, the carriage of contraband worked a forfeiture 
of the ship, but in later times the rule had been relaxed to 
the forfeiture of the ship only when owned by the same 
person." 

And in the United States v. Weed, 5 Wallace's R., 62, 
73, Mr. Justice Miller, in speaking with reference to a re- 
sulting or consequential forfeiture by reason of the alleged 
fact of the permits for trade and intercourse within the pro- 
hibited sections not being found with the goods, as the regu- 
lations directed_, says: "This was merely directory, and 
would not of itself work a forfeiture of the goods." 

From this late decision, as well as the foregoing authori- 



10 

ties, and many acts of Congress too numerous for citation, 
it is seen that the words " work a forfeiture " are invariably 
used hy courts and legal authors, as well as legislators, to 
denote or mean a resulting or consequential forfeiture, that 
is, a forfeiture that results and follows as a legal conse- 
quence from some prior act or thing. 

And this being the invariable and legal meaning of the 
words " work a forfeiture ," the construction and meaning of 
the above clause of the Constitution, providing that " Con- 
gress shall have power to declare the punishment of trea- 
son, hut no attainder of treason shall work corruption of 
blood or forfeiture, except during the life of the person at- 
tainted,"" would seem to he free from all difficulty and of 
easy solution. 

The latter part of the above provision, " hut no attainder of 
treason shall work corruption of blood or forfeiture^ except 
during the life of the person attainted," is not, and cannot 
according to any known rule of construction_, be considered 
and held as a limitation of the previously unlimited power 
given to Congress to declare and fix the punishment of trea- 
son. The words used have no reference whatever to the 
power of Congress over ,the subject of treason. But they 
are a limitation, simply, as to the extent to which the then 
supposed consequential forfeitures, resulting and flowing 
from an attainder of treason, should extend. 

This is the plain imjiort and meaning of the words used. 
They mean no more, and they mean no less, than that the re- 
sulting consequences i'rom an attainder of treason should not 
extend beyond the period of the life of the traitor ; but they 
are no limitation whatever upon the power of Congress to 
declare the punishment of treason. 

The declaration is not that Congress shall only have power 
to forfeit the estate of a party for treason during the period 



11 

of his natural life, but the express provision is that " no 
atta'nder of treason shall work corruption of blood or for- 
feiture, except during the life of the person attainted." 

It is, therefore, seen that it was the attainder that was not 
to be allowed to work a forfeiture beyond the lifetime of the 
traitor. And this not only according to the express and 
positive words of the Constitution, but for the further reason 
that a forfeiture merely for the lifetime of the convicted 
traitor would be a matter of little or no importance what- 
ever, as the forfeiture would terminate with the execution of 
the criminal, at which time only, as we have seen above, 
could real estate vest in possession. The vesting in pos- 
session, as well as the termination of the estate, therefore, 
would occur, eo insianti, and the forfeiture for life merely 
would practically amount to nothing. And in this view of 
the matter it might well be said that the above provision in 
relation to attainder amounts substantially to the abolition 
of all the forfeitures resulting therefroai. But in no possi- 
ble view, as we think, can the provision relating to attainder 
be construed or held a limitation on the power of Congress 
to declare and fix the punishment for treason. Had the 
framers of the Constitution not intended Congress, by the 
broad and comprehensive words of the grant, to have full 
power to legislate in relation to the punishment of treason, 
it is but reasonable to suppose that they would have said so 
in words too clear to admit of doubt or controversy. 

PROPERTY NOT CONFISCATED FOR TREASON. 

II. The Conjiscations provided for in the Act are not Pun- 
ishments and Confiscations for Treason. 

Treason and its punishment are provided for in the first 
section of the act. And the second section prescribes the 



12 

punishment for inciting to or engaging in rebellion. The 
other provisions of the statute relating to coniiscation have 
reference to the acts therein specified as being with reference 
to proper t}', ads less and different from that of treason, and 
accordingly prescribe confiscation as the consequence or pen- 
alty, civilly considered, attaclied by law to such acts, which 
is a less and ditferent penalty from that previously provided 
for treason. 

"Congress/' says Mr. Justice Miller_, in the case of the 
Hampton, 5 Wallace, 375, "had by several statutes * * 
defined certain acts or conditions growing out of the rebel- 
lion, which would render property liable to confiscation to 
the United States." 

In the Amy Warwick, (2 Sprague, 140,) Judge Sprague 
says : " The objection assumes that there can be no condem- 
nation unless the claimants are traitors. This is an error. 
As already stated, property may be treated as hostile, 
although the owner has not been guilty of treason. He 
may be iin alien, owing no allegiance, or a citizen, whose 
opinions or wishes are not proved to be hostile, and yet be 
so situated, and his property be so used, as to subject it to 
capture as prize."' S. P. 8 Cranch, 253 ; 18 How., 114. 

And this view of the matter is fully sustained and am})]y 
l)orne out by the decision of the Court of Claims in the 
Cotton Cases. 2 Court of Claims, R. 529. 

Chief Justice Casey, in delivering the opinion of the court 
in the cases just referred to, says : " We do not believe that 
the only aid or comfort which will prevent a recovery are 
such acts as would under the Constitution and laws consti- 
tute treason. The act of July 17, 18G2, puts these and 
nearly similar words in juxtaposition with others which 
explain how they were used criminally and how in reference 
to property. In the second section it prescribes the punish- 



13 

meiit lor inciting to or engaging in the rebellion as a differ- 
ent offence from that of treason^ which was provided for in 
the first section. If any person shall incite, set on foot, 
assist or engage in any rebellion or insurrection against the 
authority of the United States, or the laws thereof, or shall 
give aid ( r comfort thereto, or shall engage in, or give aid 
and com'brt to any such existing rebellion or insurrection," 
&c. In the sixth clause of the fifth section it provides, in 
reference to this same subject, tlie forfeiture of property, as 
follows : ' If any person who, owing property in any loyal 
State or Territory, &c.. shall hereafter assist and give aid 
and comfort to such rebellion, such property shall be subject 
to seizure and forfeiture.' The sixth section further provides 
that if any person other than those previously named, being 
engaged in armed rebellion against the Government of the 
United States, or aiding or abetting such rebellion, shall 
not, after proclamation by the President, cease to aid, coun- 
tenance and abet such rebellion, and return to his allegiance 
to the United States, all his property should be liable to 
seizure and forTeiture. 

'■'The seventh section of the same act made provision for 
libeling such property so seized in various courts of the 
United States ; and after directing that the proceedings 
should conform as nearly as may be to proceedings in admi- 
ralty or revenue cases, it enacts : 

" 'And if said property, whether real or personal, shall be 
found to have belonged to a person engaged in rebellion, or 
who has given aid or comfort thereto, the same shall be 
condemned as enemy's property, and become the property 
of the United States,' &c. 

" Other provisions of this act might be cited to show that 
these words have been used by Congress in relation to prop- 
erty, and in a different sense from that in which the same 



14 

or nearly identical words are used in the Constitution and 
laws of the United States to define the crime of treason and 
prescribe its punishment." 

And in Knoefel v. Williams, 30 Indiana R., 5, it is point- 
edly said : '^It is argued that this act is an act for the pun- 
ishment of treason, and that it deprives the person implicated 
of a trial before the punishment. But we apprehend that 
confiscation acts stand on a much broader basis." 

It is, therefore, very evident tliat the acts specified in the 
statute which give rise to confiscation of property are placed 
on a different footing from that of treason. For the property 
of "any person," a foreigner, who could not be guilty of 
treason, as well as that of a citizen, might be forfeited for 
accepting or holding any of the offices or positions specified 
in the act. 

Property, therefore, is 7iot forfeited under the act, as a 
punishment for treason, but for disobedience to the mandate 
of the law prohibiting any and every one from thereafter 
acting in any one of the capacities specified in the 5th sec- 
tion, and the failure of parties to comply with the provisions 
of the 6th section of the act, requiring all parties to cease 
to aid, countenance, and abet the rebellion, and to return, 
within the specified time, to tlieir allegiance, and is there- 
fore legal and constitutional, even if the power of Congress 
to punish treason was limited by tlie Constitution. 

The act, as its title imports, embraces a variety of different 
and distinct objects. It is entitled: " An act to supju'ess 
insurrection, to punish treason and rebellion, to seize and 
confiscate the property of rebels, and for other purposes." 
It is, therefore, an act to suppress insurrection. It is an act 
to punish treason and rebellion. It is an act to seize and 
confiscate the property of rebels. And it is also an act for 
other purposes. Each and every one of these objects might 



15 

have been embraced in a separate and distinct law. But 
these provisions are none the less distinct laws, and none 
the less relate to different matters, and none the less governed 
by different rules, because they are all embodied in one and 
the same act. There is nothing in the Constitution of the Uni- 
ted States similar to the provision in the constitutions of 
some of the individual States, requiiing the object of every 
law to be expressed in its title, and to relate to but one sub- 
ject. And there is no doubt but that it is from some one or 
more of these sources that the idea came that the act of 1862 
was an act solely for the punishment of treason. The Con- 
gress of the United States, however, looks to no such sources 
for authority for its laws. It is left perfectly free and un- 
fettered by the Constitution, as to including one or more 
subjects in an act. It may or may not, just as it pleases^ in- 
clude one or more subjects in a law. Who does not recol- 
lect the celebrated Omnibus Bill of Mr. Clay, in 1850, which 
related to various subjects : to the Texas boundary ; to the 
admission of Colifornia as a State in the Union ; to the 
establishment of territorial governments for Utah and New 
Mexico, and to other objects? 

Did any one of the great and glorious men of that day 
(such as the God-like Webster, the great expounder and 
defender of the Constitution) think that that bill related to 
but one object, or that there was any objection to the valid- 
ity of the same because it embraced and included different 
and distinct subjects? Certainly not. 

And we must be permitted to say that no one but those 
in pursuit of an impracticable theory could ever have sup- 
posed that the act of 1862 was an act solely for the punish- 
ment of treason. 

But it has been said '' the very title of the law shows that 
it is a penal statute ; it is entitled ' An act to suppress in- 



16 

suirectiun, to i)Uiiish treason aud rebellion, to seize and con- 
fiscate the property of rebels, and for other purposes.' " ''Is 
it not, then, clear that the main object of the law^ thus de- 
clared by its title, is the punishment of treason and rebel- 
lion ?" I answer, no! The main object of the statute is to 
suppress insurrection ; the punishment of treason and rebel- 
lion, and the seizure and confiscation of the property of 
rebels, &c., arc hut the means to suppress insurrection. 

The confiscations under the act were not claimed as pun- 
ishments for the crime of treason. But they rest upon the 
provisions of the fifth and sixth sections of the act. The 
fifih section paescribes confiscation of property for " an?/ per- 
son" (citizen or foreigner) thereafter acting as an officer of 
the army or navy of the rebels, or as President, Vice Presi- 
dent, member of Congress, judge of any court, cabinet officer, 
&c., of the so-called Confederate States. And the sixth 
section reads as follows: " That if any person within any 
State or Territory of the United States, other than those 
named as aforesaid, after the passage of this act, being en- 
gaged in armed rebellion against the Government of the 
United States, or aiding or abetting such rebellion, shall 
not, within sixty days after public warning and proclama- 
tion duly given and made by the President of the United 
States, cease to aid, countenance, and abet such rebellion, 
and return to his allegiance to the United States, all the 
estate and property, money, stocks, and credits of such per- 
son shall be liable to seizure as aforesaid ; and it shall be 
the duty of the President to seize and use them as aforesaid, 
or the proceeds thereof." 

And the mode of proceeding rests on the seventh section 
of the same act, which provides : " That to secure the con- 
demnation and sale of any such property, after the same 
shall have been seized, so that it may be made available for 



17 

the purposes aforesaid," (that of the support of the army,) 
" proceedings i?i rem shall be instituted in the name of the 
United States in any district court," &c. 

Now, these provisions show very clearly that it is not as 
a punishment for the crime of treason that the property was 
forfeited, but it was because the party failed to obey the 
mandate of the law providing that if '' any person " should 
thereafter act in any of the capacities specified in the fifth 
section, that their property should be liable to seizure, &c. ; 
and under the sixth section of the act requiring every per- 
son therein referred to ''to cease to aid, countenance, and 
abet such rebellion, and tu return to his allegiance to the 
United States." 

It was, therefore, the fact of a party having acted in con- 
travention of the statute in one or more of the capacities 
named, or the failure of the party to return to his allegi- 
ance, upon which the forfeiture and confiscation is based. 
Treason had already been provided for, and the penalty for 
the same had been prescribed in the first section of the act, 
(12 U. S. Stat., 589, 590,) as follows : "That every person 
who shall hereafter commit the crime of treason against the 
United States, and shall be adjudged guilty thereof, shall 
sufi'er death, and all his slaves, if an}", shall be declared and 
made free ; or, at the discretion of the court, he shall be im- 
prisoned for not less than five years, and fined not less than 
ten thousand dollars, and all his slaves, if any, shall be de- 
clared and made free ; said fine shall be levied and collected 
on any or all of the property, real and personal, excluding 
slaves, of which the said person so convicted was the owner 
at the time of committing the said crime, any sale or con- 
veyance lo the contrary notwithstanding." And for any 
treason committed before the passage of the act of 1862, it 
is provided, by the fourth section of that act, that a party 



IS 

might be prosecuted under any former law, unless convicted 
under the act of 1862. Now, under the former law, the 
only penalty for treason was death. 

It is, therefore, manifest that confiscation under the other 
sections of the act was not designed as a punishment for 
treason. The object of these sections of the act was to deter 
"any person" (foreigners as well as citizens) from therea'- 
ter acting in any one of the specified capacities, and to com- 
pel every one to return to his allegiance to the Government, 
and it was because of the party acting contrary to the pro- 
visions of the statute, or his failure to return to his allegi- 
ance, that his property was forfeited. . And tlie law is well 
settled that there may be a forfeiture under a statute for 
non-feasance, as well as for misfeasance. 7 Co., 36 ; 11 Co., 
68; 8 Bouv. Bac. Ab.,44; Moor, 238. In Pennsylvania, 
parties during the Kevolution, under a statute of that State, 
forfeited their property because they failed to return, as re- 
quired by law, to the State and stand their trial for treason. 
3 Watts & Serg. R., 510. So in Massachusetts, parties for- 
feited their property by remaining abroad after having been 
required by statute to return. 1 Mass 11., 385 ; 4 Mass.^ 
282 ; 15 Mass., 44. And this was not regarded as a pun- 
ishment for treason, but as a penalty by reason of their fail- 
ure to return to the State as commanded by the law. 1 
Mass. R., 385, 386 ; 2 J. R., 260. 

And in Mcllvaine v. Coxe's Lessee, 4 Cranch, 209, the 
Supreme Court of the United States, with reference to the 
confiscation acts of New Jersey, and those who had failed 
to comply with the requirements of the same, said : "They 
are pronounced guilty of high treason, not for the purpose 
of affecting them personally, which would have been most 
unjust, but with a view to the confiscation of their estates." 

So, uuiler the act of 1862, parties are prohibited from 



19 

accepting positions and holding offices, and all persons con- 
cerned in the rebellion are required to return to their alle- 
giance within a certain time ; and on their failure so to do, 
it is declared in the act that their property should be liable 
to seizure and confiscation. This is a proper and legitimate 
exercise of power on the part of Congress, even if it should 
be regarded as an act merely of sovereign authority. 

"Punishments" (says Bowyer in his Commentaries on 
Universal Public Law, 180) ' ' are of natural law aud juris gen- 
tium, though the form in which the right of punishing offences 
exists in civil society is given by municipal law." And the 
reason of this is that in civil society the right to punish is 
an attribute of sovereignty. In the case of McCullocli v. 
State of Maryland, 4 Wheat., 416, Chief Justice Marshall, 
in speaking of the power of the Government to punish in 
cases not j)rescribed by the Constitution, says : " All admit 
that the Government may legitimately punish any violation 
of its laws, and yet this not among the enumerated powers 
of Congress." And at page 418 this same eminent Chief 
Justice, after giving some striking illustrations of the im- 
plied power of the right of the Government to punish any 
violation of its laws, and after stating that '•■ this right is 
indeed essential to the beneficial exercise of the power," 
(that is any given power under the Constitution,) "but not 
indispensably necessary to its existence," or to the exercise 
of the power, though no punishments should be inflicted for 
the violation of the laws prescribed, says : " The good sense 
of the public has pronounced, without hesitation, that the 
power of punishment appertains to sovereignty, and may be 
exercised whenever the sovereign has a right to act^ as an 
incident to his constitutional powers. It is a means for car- 
rying into execution all sovereign powers, and may be used, 
although not indispensably necessary. It is a right inci- 



20 

entald to the power, and conducive to its beneficial exer- 
cise." 

So the good sense of the public, as well as the courts, 
have pronounced the act of 1862 constitutional. It but re- 
quired a reasonable duty from those to whom it was ad- 
dressed ; that is, not to accept any position or office under 
the confederacy, and to return to their allegiance within a 
reasonable time, and, in default of so doing, it })rovided for 
the seizure and condemnation of their proi)erty. This is 
legitimate. This is legal and constitutional. 

Nor will it be of any validity or force against the correct- 
ness of this position to say that the law is addressed to those 
who were not personally amenable to such law. For it has 
been settled by the solemn judgment of the House of Lords, in 
England, that the prohibitory laws of a country may follow its 
subjects wherever they go, so that acts done by them in for- 
eign parts are affected by those laws. Sussex Peerage Case, 
11 CI. & Fin., 85, 146. 

By the law of England, if the Crown sends a writ to any 
subject when abroad, commanding his return to the realm, 
and if he fails or neglects so to do, it is deemed a high con- 
tempt of the royal prerogative, and for which the offender's 
lands are liable to be seized till he return, and then he is 
liable to fine and imprisonment. 1 Bl. Com., 265, 266 ; 
1 Hawk. P. C, 22. 

Bowyer, 181, 182, says : ''Every State may, therefore, 
absolutely Ibrbid its subjects to do any given thing, wher- 
ever they may be, provided it do not enforce that prohibi- 
tion by any act of jurisdiction exercised out of its own terri- 
tories, and within those of another State. And the subject 
so offending may be compelled to return home, or punished 
on his contumaciously remaining abroad, by process against 
his pi(.)pcrly situated in his own country." And the im- 



21 

movable property even of foreigneis ''may be liable to for- 
feiture, or other process of law, lor offences against the 
laws of the country where it is situated, in the same man- 
ner as it would be if possessed by subjects of that State." 

In Avhatever light, then, we may view those engaged in 
the rebellion, (even if viewed as citizens, merely, and not as 
enemies,) the act authorizing the seizure and condemnation 
of their property, for their disobedience and failure to cease 
to aid. countenance, and abet the rebellion, and return to 
their allegiance within the prescribed time, cannot but be 
considered as a legitimate and constitutional exercise of 
power by Congress. 

The legislative department of the Government has the 
exclusive right to say what shall be done, and what left un- 
done^ and, in order to secure obedience to the law, to pre- 
scribe forfeiture of property as the penalty for doing or not 
doing the act required by the law-making power. The 
right to forfeit is but an incident to the power to punish for 
a violation of the law. And without the violation of the 
act of 1862, no forfeiture could have been incurred. But 
when the law is violated, justice demands, and tlie interests 
of society and government require, that the majesty of the 
law should be vindicated by the enforcement of its provi- 
sions against offenders. " One of the incidents of society 
is self-protection/' (37 Me. R., 161,) and this protection 
can only be had by the strict enforcement of such wise and 
salutary laws as tlie legislative department of tlie Govern- 
ment may from time to time ordain and establish. We, 
therefore, think that the provisions of the act of 1862 (even 
as an ordinary act of legislation) are legal and constitu- 
tional, and not a confiscation of property for treason. 

A different view, however, was taken of this matter in 
Norris v. Doniphan, 4 Met., (Ky.,) E., 385. But as the 



22 

decision in that case was based on the erroneous supposition 
that the Government did not possess the same right to con- 
fiscate property in a civil war which it had in a foreign or 
pahlic war, it cannot be regarded as authority, as it is now 
conclusively settled by the decision of the Supreme Court 
of the United States in the Prize Cases, 2 Black, that the 
Government does possess the same rights in a civil war 
which it has in a foreign or public one. 

In the Amy Warick, 2 Sprague, 141, it is said: "The 
owner may, by certain acts, have subjected his property to 
be treated as enemies', and by other distinct acts committed 
the crime of treason." 

And again, Judge Sprague, in the above case, unanswer- 
ably says : " Suppose there should be one act, which is such 
a use of property as subjects it to confiscation, and at the 
same time constitutes an overt act of treason ; and suppose, 
further, that the Government cannot proceed for both penal- 
ties, yet they may elect. They are not bound to prosecute 
for the crime ; and if they enforce tlie forfeiture, the most 
that can be said is. that they are thereby precluded from 
subsequently having a conviction foi" the treason." 

enemies' property. 

III. Property under the Act was confiscated as ^^ enemies' 

property." 

The forfeiture was neither for treason nor as a punishment 
for being engaged in rebellion or aiding and abetting the 
same. But the confiscation proceeded on the ground that 
it was "enemies' property," and in this view of the matter 
it is U7iquestionahly free from all constitutional objection and 
a valid exercise of power. 

The act in providing for the condemnation of property 



23 

expressly says : '^ It shall be condemned as enemies' i»rop- 
erty." 

This em|ihatic language is mandatory to the court«, and 
left them no discretion in the matter. 

They could only i)roceed against and deal with the prop- 
erty seized as enemies' property. And they could deal with 
it in no other way or manner whatever under the act. 

For it is for the political department of the Government 
to determine the status of parties. Borden et al vs. Luthei-, 
7 How., 1 ; GeLston vs. Hoyt, 3 Wheat., 246, 324 ; The San- 
tissima Trinidad, 7 Wheat., 337 ; Rose vs. Himely, 4 Cranch, 
272; United States vs. Palmer, 3 Wheat., 610, 634: 2 Black's 
R., 670 ; 9 How., 603 ; 16 How., 164. 

And as the Pres dent, in pursuance of the power vested in 
him for that purpose, (12 U. S. Stat., 257, § 5 ; ih. 284, ch. 
32,) proclaimed certain named States to be in insurrection 
and rebellion, this fi.xed their status, and the courts were 
bound lo consider that status as continuing until it was 
otherwise recognized and declared by the proper department 
of the Government. 

And we find, consequently, that the courts have uniformly 
held, that all the inhabitants of the States so proclaimed in 
iiisurrection and rebellion were, so far as belligerent rights 
were concerned, to be regarded and considered as enemies, 
and their property nc ordingly condemned as 'enemies' 
properly." 

"But," (as is well sai I in the Prize Cases, 2 Black's R., 
674,) "in defining the meaning of t' e (erm 'enemies' prop- 
erty,' we will be led into error if we refer to Fleta and Lord 
Coke for tlieir definition of the word * enemy.' It is a tech- 
nical phrase peculiar to prize curls, aiid depends upon 
principles of public policy as distinguished fi om the Common 
Law." 



24 

And again, in the above cases, pages 072, 673, 670, 674, 
it is sai<l : 

" The appellants contend that the U rin ' entmy " is prop- 
erly applicable to those only who are subjects or citizens 
of a foreign State at war with our own. They quote from 
the pagt s of the Common Law, which says, ' that persons who 
wage war against the king may be of two kinds^, subjects or 
citizens. The furmer are not proper enemies, but rebels and 
traitors ; the latter are those that come properly under the 
name of enemie?.' 

"They insist, moreover, that the Prtsident himself, in 
liis proclamation^ admits that great numbers of the persons 
residing within the teri'itories in possession of the insurgent 
government are loyal in their feelings, and forced by com- 
pulsion and the violence of the rebellious and revolutiimary 
party and its ' de facto government ' to submit to their laws 
and assist in their scheme of revolution ; that the acts of the 
usurping Government cannot legally .^ever the bond of their 
allegiance ; they have, therefore, a co-relative right to claim 
the protection of the Government ibr their persons and prop- 
erty, and to be treated as loyal citizens, till legally convicted 
of having renounced their allegi.ince and made war against 
the Government, by tieasonably resisting its laws. 

''They contend, also, that insurrection is the act of indi- 
viduals, and not of a government or sovereignty ; that the 
individuals engaged are subjects of law ; that confiscation 
of their property can be effected only under a municipal 
law ; that })y the law of the land, such confiscation cannot 
take place without the conviction of the owner of some 
offence ; and finally, that the secession ordinances are nul- 
lities and ineffectual to release any citizen from his alle- 
giance to the National Government, and consequently that 
the Constitution and Laws of the United States are still 



25 

operative over persons in all the States for punibliment as 
well as protection. 

"This argument rests on the assumption of two propo- 
sitions, each of which is without foundation on the estab- 
lished law of nations. It assumes that where a civil war 
exists, the parly belligerent claiming to be sovereign, 
cannot, for some unknown reason, exercise the rights of 
belligerents, although the revolutionary party may. Being 
sovereign, he can exercise only sovereign rights over the 
other party. The insurgent may be killed on the battle- 
field or by the executioner ; his property on land may be 
confiscated under the municipal law ; but the commerce on 
the ocean, which supplies the rebels with means to support 
the war, cannot be made the subject of capture under the 
laws of war, because it is ' unconstitutional ! ' 

" The law of nations is also called the law of nature ; it 
is founded on the common consent as well as the common 
sense of the world. It contains no such anomalous doctrine 
as that which this court are now for the first time desired to 
pronounce, to wit: that insurgents who have risen in 
rebellion against their sovereign, expelled her courts, es- 
tablished a revolutionary government, organized armies, and 
commenced hostilities, are not enemies because they are 
traitors; and a war levied on the Government by traitors, 
in order to dismember and destroy it, is not a icar because it 
is an ' insurrection.' 

"All persons residing within this territory whose prop- 
erty may be used to increase the revenues of the hostile 
power are, in this contest, liable to be treated as enemies, 
though not foreigners. They have cast off their allegiance 
and made war on their Government, and are none the less 
enemies because they are traitors." 

In the case of the Venice, 2 Wallace's R., 258, 2*74-0, 



26 

Chief Justice Chase, in giving the unanimous opinion of the 
Supreme Court of the United States, says: "The rule 
which declares that war makes all the citizens or subjects of 
one belligert-nt enemies of the Government, and of all 
citizens or subjects of the other, applies equally to civil and 
to international wars.* Either belligerent may modify or 
limit its operation as to })erson8 or territory of the other ; 
but in the absence of such modification or restriction, judi- 
cial tribunals cannot discriminate in its application." 

Again, in the case of Mrs. Alexander's Cotton, 2 Wal- 
lace's R., 404, 419, tlie Chief Justice says : '' It is said, that 
though remaining in rebel territory, Mrs. Alexander had 
no personal sympathy with the rebel cause, and that her 
property, therefore, cannot be regarded as enemy property ; 
but the court cannot inquire into tlie personal character and 
disposition of individual inhabitants of enemy territory. 
We must be governed by the principle of public law, so 
often announced from this bench as aj)plicable alike to civil 
and international wars, that all the i)eople of each State or 
district in insurrection against the United States, must be 
regarded as enemies, until, by the action of the legislature 
and the Executive, or otherwise, that relation is thoroughly 
and permanently changed." 

And in the later case of The Peterhoft', 5 Wallace's R., 
28, 60, Chief Justice Chase, in again delivering the unan- 
imous opinion of tlie court^ said : "It has been held by this 
court that persons residing in the rebel States at any time 
during the civil war must be regarded as enemies during 
such residence, without regard to their personal sentiments 
or dispositions."! See also 5 Wall., 369, 405, 407, 408, 409. 

•Prize Cases, 2 Black's R., 6GG; concurred in by dissenting judges, ib. 687-8. 

t Prize CHSfs, 2 Ulack, (JGO, (>Hl-H : 'I'lie Vt'uicr, 2 W«llare, 258; Mrs. Alex- 
ander's cotton, ib.. 4(1-1. 



27 

All the inhabitants, then, of the seceded States being, in 
law, enemies of the United States, the latter had a perfect 
right to resort to the belligerent right of confiscation ; for 
it is a proposition never doubted^ that a sovereign endeavor- 
ing to reduce his revolted subjects to obedience, possesses 
both sovereign and belligerent rights. He may exercise one 
or both at his option ; and the character of the act will de- 
termine in which capacity the act is performed. Marshall, 
C. J., in Rose v. Himley, 4 Cranch R., 272-3 ; Prize Cases^ 
2 Black, 673. 

The Government, therefore, possessing both sovereign and 
belligerent rights against the revolted States and their in- 
habitants, the act of July 17, 1862, entitled " An act to sup- 
press insurrection, to punish treason and rebellion, and to seize 
and confiscate the property of rebels, and for other purposes,'" 
must be regarded as an exercise of both sovereign and bel- 
ligerent rights. And being so regarded, there can be no 
doubt whatever but that all tlie seizures and condemnations of 
property provided for in the different sections of the act are to 
be regarded as made in the exercise of belligerent rights. The 
first section of the act prescribes the punishment for treason. 
And the second section provides the punishment for aiding, 
countenancing, or abetting the rebellion. These provisions 
in the first and second sections of the act are clearly to be 
regarded as an exercise of sovereign authority. 

But all the subsequent provisions of the act relating to 
the seizure and condemnation of property are manifestly to 
be referred to the belligerent right of confiscation. For in 
the fifth section it is made the duty of the President, in order 
"to insure the speedy termination of the present rebellion," 
'^ to cause the seizure of all the property," &c., of the par- 
ties named in that as well as the sixth section, " and to ap- 
ply and use the same and the proceeds thereof for the support 
of the army of the United States." 



28 

This is but the exercise of the belligerent right of confis- 
cation, as all the parties whose property was to be seized 
are spoken of as being in some way connected with the rebel- 
lion, "and are none the less enemies because they are trai- 
tors." 2 Black, 674. They were, then, not only enemies in 
law, but enemies in fact, and their property, therefore, sub- 
ject to the belligerent right of confiscation for the support 
of the army. 

For, as is well said by Chief Justice Marshall in Rose v. 
Himley, 4 Cranch, 241, 272-3, with reference to a sovereign 
who was endeavoring to reduce his revolted subjects to obe- 
dience^ possessing both sovereign and belligerent rights, 
and to be capable of acting in either character, " the man- 
ner in which he acts must determine the character of the act. 
If, as legislator, he publishes a law ordaining punishments 
for certain ofi'ences, which law is to be applied by courts, 
the nature of the law, and of the proceedings under it, will 
decide whether it is an exercise of belligerent rights, or ex- 
clusively of his sovereign power ; whether the court, in ap- 
plying this law to particular cases, acts as a prize couit or 
as a court enforcing municipal regulations." 

As the manner, then, in which the Government acts must 
determine the character of the act, we think there can be 
no doubt that the seizures and condemnation as "enemies' 
property,'' provided lor in the act, are to be regarded as an 
exercise solely of the belligerent right of confiscating " ene- 
mies' property." The owners of the property condemned 
were by the act, so far as respected property, put upon the 
footing of enemies, and treated accordingly. This is all the 
act means with reference to confiscating property, and all 
that it was intended to mean. 

In the case of the United States vs. Stock, 5 Blatchford's 
C. C. R., 237, Mr. Justice Nelson, with reference to the 



29 

nature and clifiracter of the acts of ^ugust r», 1861, and sev- 
enteenth July, 1862, says: "These acts provide for the 
seizure of enemies' property, as prize of war, on land, jure 
belli, vvliicli, according to the case of Brown vs. The United 
States, (8 Cruncli, 110,) is not authorized by the law of 
nations, and can be upluld only by an act of Congress ; in 
other words, by the municipal law of the nation seeking to 
enforce ihe forfeiture. The law of nations authorizes cap- 
tures, as ])rize of war, on the high seas ; the acts of Congress 
on the land ; and in the latter case these acts expressly pro- 
vide that the picceedings shall conform to the proceedings 
in admiralty and revenue cases, and that if the property is 
found to belong to a person engaged in the rebellion, it shall 
be condemned as enemies' property. These acts of Congress 
are but an extension of the rule which, according to inter- 
national law, has always been applied, j'to'e belli, to enem'es' 
property." 

Even the properly of a loyal and peaceful citizen, taken 
trading with the enemy, " is forfeited as prize." Jecker vs. 
Montgomery, 18 Hoav., 114. And " the ground of the for- 
feiture is that it is taken adhering to the enemy, and, there- 
fore, the proprietor is pro hac vice to be considered as an 
(nemy." lb. 

And it was held in the case of the Rapid, 8 Cranch, 155, 
that after a declaration of war an American citizen could not 
lawfully send a vessel to the enemy's country to bring away 
his property, as the law will not tolerate intercourse even 
for such a purpose. " The whole nation," says the court 
in the above case, "are embarked in one common bottom, 
and must be reconciled to submit to one common fate. Ev- 
ery individual of the one nation must acknowledge every 
individual of the other nation as his own enemy, because the 
enemy of his country." 



30 

And all the inhabitants oT enemy territuy, as we have 
seen, are to be regarded as enemies, and their pioperty, irre- 
spective of their sentiments and feelings, (2 Wallace, GO ; 
ih., 404,) liable (o capture and confiscation, except in so far 
as that relation and exemption may have been changed by 
the Government itself. Mrs. Alexander's cotton, 2 Wallace, 
404. 

How much more justifiable, tlien^ that the property of 
those who are not only enemies in haw, but enemies in fact, 
should be subjected to the belligerent right of confiscation, 
and condemned in accordance with the requirements of the 
act as " enemies' property." 

And this legislation was only nece-siry to enable the 
courts so to condemn the property and give effect to the will 
of the nation. Brown vs. Tlie United State*-, 8 Cranch, 110. 

WAR RIGHT. 

IV. War gives the right to confiscate ^^ enemies' property." 
The right to confiscate the property of an enemy is a loar 
right. Ware, Adm., vs. Hylton, et al., 3 Dall., 227, 199 ; 
Cooper vs. Telfair, 4 Dall., 14; The Venus, 8 Cranch K , 
253 ; Thompson vs. Carr, 5 N. Hamp., 510, 515 ; Brown 
vs. United States, 8 Cranch R., 125, 122, 123; Norris r6'. 
Doniphan, 4 Met, (Ky.) R. 385. All the acts of confisca- 
tion passed by the difi'erent States during tlie Revolution 
have uniformly been considered as valid and justified by a 
state of war. 1 Day's R., 4; Sleight vs. Kane, 2 J. Ca., 
236, 237; McNeil vs. Bright, 4 Mass. R., 282,304; Gil- 
bert et al. vs Bell, 15 Mass. 44; 5 Cranch, 353 n ; Smith 
vs. Maryland, 6 Cranch, 286 ; Asherton vs. Johnston, 2 N. 
Hamp., 31. 

" The right to confiscate tlie property of enemies " (says 
Mr. Justice Chase, 3 Dall., 227) ''during war, is derived 



SI 

from a state of tear, and is called the rights of war. This 
right originates from self-preservation , and is adopted as one 
of the means to weaken an enemy, and to strengthen our- 
selves. Justice, also, is another pillar on which it may rest, 
to wit: a right to reimburse the ex2:>enses of an unjust war." 
In Brown vs. The United States, 8 Cranch, 122-123, Chief 
Justice Marshall, in delivering the oj)inion of the court, 
says: "KesjDecting the power of tlie (.lovernment no doubt 
is entertained. That war gives to the sovereign full right 
to take tlie possessions and confiscate the property of the 
enemy wherever found, is conceded. The mitigations of 
this rigid rule, which tlie humane and Avise policy of mod- 
ern times has introduced into practice, will more or less 
affect the exercise of this right, but cannot impair the right 
itself. That remains undiminished, and Avhen the sovereign 
authorities shall choose to bring it into operation, the judicial 
department must give effect to its will."' And, in this same 
case, at page 125, Chief Justice Marshall further says : "It 
may be considered as the opinion of all who have written 
on the jus belli, that war gives the right to confiscate^ but 
does not of itself confiscate the property of the enemy." 

Chancellor Kent, in speaking in reference to this subject, 
has said : " But however strong the current of authority in 
favor of tlie modern and milder construction of the rule of in- 
ternational law on this subject, the point seems to be no 
longer open for discussion in this country ; and it has become 
definitely settled, in favor of the ancient and sterner rule, by 
the Supreme Court of the Unite 1 States." 1 Kent's Com., 
69, 10th ed., side p. 59. 

In Thompson vs. Carr, 5N. Hamp., 515, Richardson, Chief 
Justice, states the law as follows : " The right to confiscate 
the property of an enemj'", during a war, is derived from a 
state of war. The right originates in the principle of self- 



32 

preservation, and is in substance the same as the right of 
capture." 

Martens, in his summary of the Law of Nations, (book 8, 
chap. 3, sec. 9,) says: "The conqueror has a right to seize 
on the property of the enemy, wliether movable or immov- 
able. These seizures may be made, first, in oi-der to obtain 
what he demands as his due or equivalent ; secondly, to defray 
the expenses of the war ; thirdly, to force tlie enemy to equit- 
able peace ; fourthly, to deter liira, or by reducing his 
strength, to hinder him from repeating in futui-e the injuries 
which have been the cause of the war," 

Grotius, too, (book 3. chap. 6,) recognizes the right of 
confiscation in the most unqualified manner. 

'' A State taking up arms," (says Yaftel, book 3, chap. 9, 
sections 160, 161,) "has a right to weaken her enemy, in 
order to render him incapable of supporting his unjust vio- 
lence^ a right to deprive him of the means of resistance. 
Hence, as from this source originate all the rights which 
war gives us over things belonging to the enemy, we have 
a right to deprive him of his possessions, of everything 
which may augment his strength, and enable him to make 
war. This every one enlleavors to accomplish in the man- 
ner most suitable to him. Whenever we have an opportu- 
nity, we seize on the enemy's property and convert it to our 
own use ; and thus, besides diminishing the enemy's power, 
we augment our own, and obtain at least a partial indem- 
nification or equivalent either for what constitutes the sub- 
ject of the war, or for tlie expenses and losses incurred in its 
prosecution ; in a word, we do ourselves justice." 

And Bynkershoek, whom Marshall, C. J., in 7 Crauch, 
144, says is "a jurist of great reputation," in his treatise 
on the Law of War, (chap. 7, p. 51, Dup. Tr.,) uses this 
clear and forcible language : " And surely, such being the 



33 

state of war, that enemies are on every legal principle pro- 
scribed and despoilel of everything, it stands to reason that 
everything belonging to the enemy, which is found in the 
hostile country, changes its owner and belongs to the Jisk." 

''If we follow the strict law of war, even immovables 
may be sold, and their proceeds be lodged in the public 
treasury, as is done with movables." 

And Manning, a late author on the Law of Nations, (p. 
136;,) in speaking in reference to the right to confiscate 
private property on land, is thus explicit: "It is still 
liable to seizure under circumstances constituting in them- 
selves a necessity, of which the conqueror is the judge." 

In commenting on the case of the Emulous, (1 Gall., 
563,) Chancellor Kent said : " When the case was brought 
up on appeal before the kSupreme Court of the United States, 
the broad principle was assumed that war gave to the sov- 
erign full right to take the person and confiscate the prop- 
erty of the enemy wherever found ; and that the mitigation 
of this rigid rule, which the wise and humane policy of 
modern times had introduced into practice, might, more or 
less, affect the exercise of the right, but could not impair 
the right itself." '"'Though this decision established the 
right, contrary to much of modern authority and practice, 
yet a great jDoint was gained over the rigor and violence of 
the ancient doctrine, by making the exercise of the right to 
depend upon a special act of Congress." 1 Kent's Com,, 
69-70, 10th ed. 

The right, then, to confiscate under the act of 1862 is 
clear and unquestionable, and much, if not all modern ob- 
ject'on to confiscation, is swept away by the act. At all 
events, no power on earth can now question the exercise of 
the right. 

For, as is well said by Chief Justice Marshall, (Schooner 



34 

Exch. vs. McFaddon, 7 Crancli, 136,) " the jurisdiction of 
the nation within its own territory is necessarily exclusive 
and absolute." 

Judge Story, too, in the case of the Emulous, 1 Gall. R., 
575-6, has well said: "It seems conceded^ and, indeed, is 
quite too clear for argument, that in former times the right 
to confiscate debts was admitted as a doctrine of interna- 
tional law. It had the countenance of the civil law, of 
Grotius, of Puffendorf, and lastly of Bynkershoek, who is 
himself of thi3 highest authority, and pronounces his opinion 
in the most explicit manner. Down to the year 1737 it may 
be considered as the opinion of jurists that the right was un- 
questionable. It is, then, incumbent on those who assume 
a different doctrine to prove that since that period it has, 
by the general consent of nations, become incorporated into 
the code of public law. I take upon me to say that no jurist 
of rej)utation can be found who has denied the right of con- 
fiscation of enemies' debts." 

And, after remarking that Vat! el had been supposed to 
be most favorable to the new doctrine, and after stating 
positively that even he did not deny the right of confisca- 
tion, this same eminent ^author and judge uses this positive 
and emphatic language in reference to Vattel : " But if he 
is singly to be opposed to tlie weight of Grotius and Pufi*en- 
dorf, and, above all, Bynkershoek, it will be difficult for 
him to sustain so unequal a contest." lb., 575. Nor is 
there anything in the subsequent opinion of the Supreme 
Court in this same case that in the least conflicts with the 
views above expressed ; but, on the contrary, the right to 
confisca'e, whenever Congress should see fit so to do by 
legislative enactment, was unqualifiedly admitted. 

In commenting on the remarks of an able and distinguished 
statesman, who had said that the right to confiscate had not 



35 

been used for some considerable time, Judge St;)ry (1 Gall. 
R.^ 5*77-8) thus gives his answer to that position: "It is 
supposed by the same learned writer that the principle of 
confiscating debts had been abandoned for more than a cen- 
tury. That the practice was intermitted is certainly no very 
clear proof of an abandonment of the principle. Motives of 
policy and the general interests of commerce may combine 
to induce a nation not to enforce its strict rights, but it ought 
not, therefore, to be construed to release them. It may, 
however, be well doubted if the practice is quite so uniform 
as it is supposed. The case of the Silesian loan, which ex- 
ercised the highest talents of the English nation, is an 
instance to the contrary, almost within a half century." 

To this able and unanswerable exposition of the law may 
be added the modern usage of manv of the States durinsr 
the Revolution, and whose acts stand confirmed by the sol- 
emn judgments of every court which has ever been called 
up m to pronounce upon the validity of those acts of confis- 
cation. And it is well said by Sedgwick, J., in Martin v. 
Com. et al., 1 Mass. R., 385, in reference to the property of 
those who adhered to the British Crown : "It might not be 
converted by the owner into means of ofi'ence ; it might justly 
be seized by the community for its own defence and secu- 
rity." So the property of rebels and traitors may not be con- 
verted by the owners into means of offence ; it may justly be 
seized and condemned as provided in the act, and the pro- 
ceeds used for the support of the army. 

No authority of ancient or modern times has denied the 
right of a belligerent to confiscate the property of the enemy. 
But it has been said, substantially, that the property of pri- 
vate individuals ought not to be taken, because the people 
may have been compelled by their sovereign to engage in a 
war to which they were opposed, and that, therefore, it 



36 

would not be just to pun'sli them with a confiscation of 
their property for the acts of their sovereign, which they 
could not prevent. Whatever may be the force of this mode 
of reasoning in regard to the subjects of absolute and despotic 
governments, it certainly can have no application whatever 
to a civil war of the description in which we were recently 
engaged. In arbitrary governments sovereignty is. said to 
reside in the king. In England it is vested in the Crown, 
Lords 'and Commons. But in this country our theory of 
government is that every citizen is a freeman, and that sov- 
ereignty resides in the great body of the people, and not in 
the Government. If then, as all admit, the property of one 
sovereign may be confiscated in war, why may not the prop- 
erty of all the sovereigns who conjointly inaugurate civil 
war be confiscated by the victorious part}'^? The principle 
that would warrant confiscation in the one case would also 
warrant it in the other. The late war was a war of all the 
people engaged in the same against the Government, and 
the act only contemplates the confiscation of the property of 
those who failed to cease to aid, countenance and abet the 
rebellion, and return to their allegiance within the prescribed 
time. There is no analogy, then, in the cases that are put 
for exempting private property from confiscation and the 
one under consideration. Nor is there any force in the fur- 
ther reason that is sometimes given for exempting private 
property of an enemy situated in the country from confisca- 
tion. The reason, in substance, assigned for such exemption 
is that inasmuch as the party had been permitted by the 
Government to acquire property within the same, it is pre- 
sumed that it was acquired with the tacit, or implied, under- 
standing that in case of war between the Government of the 
owner and that of the country in wliich the property is sit- 



37 

uate, it would not be confiscated. See Wheat. Int. L., 
(Law. ed.,) 528. 

A reason of this kind, it is evident, could have no appli- 
cation whatever to a civil war. The parties making the 
war, in such case, did not acquire their property on any- 
such condition as that of which we have spoken. They 
acquired their property as citizens of the country in which 
it is situate, and it would be an absurdity to suppose tliat 
there was any tacit or implied understanding between them 
and the Government that in case they made war on the 
same, that their property should not be confiscated. And 
so the property of any foreign subject aiding rebellion may 
be justly confiscated, without at all conflicting with the prin- 
ciple upon which it is sought to exempt private property 
situate in a country from confiscation. In the case put there 
would be no war between the Grovernraent and that of such 
foreign owner. The reason for the rule of exemption, then^ 
can have no application, and as the reason of the rule fails, 
of course, the rule itself must fail. For it would be a mon- 
strous absurdity to suppose that there ever was, or could be, 
any understanding of any kind between a foreigner and the 
Government in which he was permitted to acquire property, 
that it would not confiscate his property in case he, as an 
individual, joined in a rebellion to subvert and overthrow 
the Government. One so acting certainly could not be on 
any better footing than that of the citizens engaged in the 
rebellion. 

But the right of the Government to confiscate every kind 
of enemy property is established beyond the possibility of a 
doubt. And this is fully warranted not only by the fore- 
going authorities, but by the broad and unrestricted language 
of our distinguished countryman, Mr, Wheaton, as follows : 
''It is competent for the national authority to work a trans- 



38 

mutation, total or partial, of the property belonging to the 
vanquished party ; and if actually confiscated, the fact must 
be taken for right. But to work such a transfer of proprie- 
tary rights, some positive and unequivocal act of confiscation 
it essential." Wheat. Int. L., (Law ed.,) 55, chap. 2, § 11. 

For the right to confiscate is l)ut tlie belligerent right of 
capture. 

And our late civil war was a public one on the part of the 
Government, and a private one on the part of the insurgents, 
or rebels. Poison's Int. L., 40, 1st Am. ed. ; Wheat. Int.. 
L., (Law ed.,) 520-1. 

'^ When a party is formed in a State' (says Vattel, Droit 
des Gens, liv. Ill, cli. 18, § 292) " who no longer obey the 
sovereign, and are possessed of sufficient strength to oppose 
him — or where, in a republic, the nation is divided into 
two opposite factions, and both sides take up arras — this is 
called a civil ivar." " Custom appropriates the terra ' civil 
war ' to every war between the raembers of one and the 
same political society." 

Bello has said: "When a faction is formed in a State, 
which takes up arms against the sovereign, in order to wrest 
from him the supreme power, or impose conditions on him — 
or, when a republic is divided into two parties which mutu- 
ally treat each other as enemies — this war is called civil ivar, 
which means war between fellow-citizens." See Wheat. 
Int. L., (Law. ed.,) 524, in note. 

And Poison, in his principles of the Law of Nations, p, 
40, 1st Am. ed., says: "A civil war is a war between 
members of the same state, and, according to Grotius, is a 
public war as far as the Government is concerned, and 
private on the part of the insurgents." 

Such, then, being the nature and character of civil war. 



39 

of course all belligerent rights attach to the same, just as 
though it were a war between two independent nations. 

Vattel, (Droit des Gens, liv. Ill, ch. 18, §§ 293-4,) in 
speaking on this subject, siys : "A civil war breaks the 
bands of society and government, or at least suspends their 
force and effect ; it produces in the nation two independent 
parties, who consider each other as enemies, and acknowl- 
edge no common judge. They stand, therefore, in pre- 
cisely the same predicament as two nations who engage in a 
contest, and, being unable to come to an agreement, have 
recourse to arms. This being the case, it is very evident 
the common laws of war ought to be observed by both 
parties in every civil war." 

And Grotius, in his great work, recognizes the fact that 
civil war is a mixed war, public on the side of the Govern- 
ment, and private on the part of the people resisting its 
authority, and gives belligerent rights against the rebels 
and other nations aiding them. 

Mr. Wheaton (Int. L., 520-2, Law. Ed.j says: "A civil 
war between the different members of the same society is 
what Grotius calls a mixed war ; it is, according to him, 
public on the side of the established Government, anA. priiale 
on the part of those resisting its authority. But the general 
usage of nations regards such a war as entitling both the 
conten ling j)arties to all the rights of war as against each 
other, and even as respects neutral nations." 

In the case of Kose vs. Himely, 4 Cranch, 272, it is ad- 
mitted that a sovereign who is endeavoring to reduce his 
revolted subjects to obedience, possesses both sovereign and 
belligerent rights. And this decision has been held to be 
authoritative. 13 J. R., 587. 

The doctrine is fuUv recognized in The United States vs. 



40 

Palmer, 3 Wheat , 635 ; and in the Divina Pastora, 4 
Wheat., 52. 

Mr. Justice Story, in speaking of the civil war between 
Spain and her revolted South American colonies, and of the 
rights of the Government and the rebels, said : " Each party- 
is, therefore, deemed by us a belligerent nation, having, so 
far as concerns us, the sovereign rights of war, and entitled 
to be respected in the exercise of those rights." The San- 
tissima Trinidad, 7 Wheat., 337. 

"When * * * * q{^(i ^oar exists," (says tlie court 
in the Prize Cases, 2 Black, 667-8,) "hostilities may be 
prosecuted on the same footing as if those opposing the Gov- 
ernment were foreign enemies invading the land." 

"Congress has as much power to 'suppress insurrections' as 
to ' repel invasions,' and resort may be had to any means 
known and recognized by the laws of war." 30 Indiana 
R., 5. 

The Government, then, has all the rights of a belligerent, 
and may take and confiscate the property of the enemy 
wherever its flag flies in the enemy's country. It is but the 
exercise of a belligerent rjght. " The right of one bellig- 
erent not only to coerce the other by direct force, but also to 
cripple liis resources by the seizure and destruction of his 
property, is a necessary result of a state of war." Prize 
Cases, 2 Black's P., 671. See also 9 How., 616 ; 16 How., 
140, 143, 196, 201. 

CONFISCATION CONSTITUTIONAL. 

V. The night to Confiscate is not only a War Right, hut a 
Constitutional Right. 

By sect. 8, paragraphs 1, 11, 12, 13 and 18, Art. I of the 
Constitution, Congress has power to provide for the com- 
mon defence and general welfare of the United States ; to 



41 

declare war, make rules concerning captures on land and 
water, to raise and support armies, to provide for calling 
forth tlie militia to execute the laws of the Union, suppress 
insurrection and repel invasion, to make all laws which 
shall bo necessary (and this is not by way of restriction, but 
an enlargement of those powers, 4 Wheat., 419-20) and 
proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the 
Government of the United States, or in any department or 
officer thereof. 

These are as broad and comprehensive grants of power 
as it is possible for language to convey, and where power 
is given to Congress to do any act it may select, and use 
all legitimate means that it deems fit and proper to effect 
that object. Fisher vs. Blight, 2 Cranch, 358, 396; 
McCulloch vs. State of Maryland, 4 Wheat., 316, 419, 420, 
421; 18 How., 281. 

In Fisher vs. Blight, 2 Cranch, 358, 396, Chief Justice 
Marshall says : " Congress must possess the choice of means, 
and must be empowered to use any means whicli are in fact 
conducive to the exercise of a power granted by the Consti- 
tution." And in the great case of McCulloch vs. The 
State of Maryland, 4 Wheat., 421, this same eminent 
Chief Justice says : 

"We admit, as all must admit, that the powers of the 
Government are limited, and that its limits are not to be 
transcended. But we think the sound construction of the 
Constitution must allov/ to the National Legislature that 
discretion, with respect to the means by which the powers 
it confers are to be carried into execution, which will enable 
that body to perform the high duties assigned to it, in the 
manner most beneficial to the people. Let the end be legiti- 
mate ; let it be within the scope of the Constitution, and 



42 

all means which are appropriate, which are plainly adapted 
to that end, which are not prohihited, but consistent with 
the letter and spirit of the Constitution, arc constitutional." 

Let the act of 1862, then, be considered as a war measure 
adopted by Congress for the purpose of suppressing insur- 
rection and rebellioji, and every objection to the same must 
vanish. For war gives rights which no one may deny. In 
the case of Johnson vs. Mcintosh, 8 Wheat., 588-9^ Chief 
Justice Marshall has well said : " Conquest gives a title 
which the courts of the conqueror cannot deny, whatever 
the private and speculative opinions of individuals may be 
respecting the original justice of the claim, which has been 
successfully asserted." " The title by conquest is acquired 
and maintained by force. The conqueror prescribes its 
limits." See 9 How., 615, 618. 

The war right under the Constitution, as well as the Law 
of Nations, is the paramount and supreme law so long as 
the war lasts. All other rights, if such there be, which 
are in conflict or inconsistent with the rights of war, may 
justly be said to be in a state of suspended animation during 
the existence of the war. How, then, can the right of con- 
fiscation, as provided in the act, be denied, or deemed un- 
constitutional ? 

But it has been said that the war power is dangerous to 
liberty, and that Congress has no warrant in the Constitu- 
tion for the exercise of such an undefined and unrestricted 
power. 

The exercise of the war power may be dangerous to rebels 
and traitors, but it is none the less a legal and constitutional 
power. Who but rebels and traitors call forth and give 
vitality to this most extraordinary and unlimited of powers ? 
And who but the same description of persons prolong its 
existence? Is it not a power that will lapse into repose as 



43 

soon as the rebellion is crushed? Most assuredly it is. But 
as long ns treason and rebellion flourish, it is not only the 
right, but the duty of the Grovernment to avail itself of all 
the rights which war gives, as well as every power which 
the Constitution confers. 

Admit that the Congress cannot declare war against a State 
of the Union, yet when one or more States inaugurate a 
state of civil war upon the Government, it cannot, without 
ceasing to fulfil its high destiny under the Constitution, 
decline the gage of battle thus thrown down. The (lovern- 
ment does not, in such case, declare and make the war. On 
the contrary, it but repels the war that is made upon itself^ 
and as long as the same shall last, so long must the Grovern- 
ment be its own judge of the mode and measure of redress. 

It is for Congress to say what rights of war shall be en- 
forced, and for the President, as commander-in-chief, to 
conduct the operations of war according to the best of his 
judgment and ability. They are the sole and only judges 
as to what means are necessary and shall be used in the 
prosecution of the war, in order to bring the same to a suc- 
cessful termination. Their discretion in war is above and 
beyond the control of all earthly power, and all their acts 
in relation to war are valid and legal when not expressly 
prohibited by the Constitution. 

In the case of McCulloch v. The State of Maryland, 4 
Wheat., 423, Chief Justice Marshall (even in regard to 
peace legislation) says : " But where the law is not prohib- 
ited, and is really calculated to affect any of the objects en- 
trusted to the Government, to undertake here to inquire into 
the degree of its necessity, would be to pass the line which 
circumscribes the judicial department and to tread on legis- 
lative ground. This court disclaims all pretensions to such 
power." See also 3 Wheat., 634-5. 



44 

So the courts must disclaim all right to judge of the neces- 
sity of the provisions of the act of 1862. The question is not 
whetlier it was wise or unwise, necessary or unnecessary ; 
hut tlie sole and only question is, does it come within the 
legitimate and constitutional power of Congress ? If it be 
legitimate and constitutional, the courts can have nothing 
to do but to execute the law. In no case is the court respon- 
sible for any supposed, imaginary, or real consequences that 
might flow from the execution of the statute. 

The legislative department is alone responsible to the 
people for the justness and fidelity of its acts ; and as Con- 
gress has the iindouhted con^itiUional rigid to suppress insur- 
rection and rebellion, it must, of 7iecessihj, have the exclusive 
selection and use of all such means as it deems proper to 
effect that purpose. 

In Seple vs. The United States, in the circuit court at 
Richmond, Chief Justice Chase, with reference to this 
question and the several cases arising under this act and 
that of August 6, 18G1, which had come before the Supreme 
Court of the United States, says : 

"In neither of these cases was this point made, either by 
counsel or by the court, and it is a fair conclusion that, 
neither at the bar nor on the bench^ was the constitution- 
ality of the act doubted. We_, at least, unless clearly 
satisfied that the act is unconstitutional, and satisfied also 
that the point passed without observation in the Supreme 
Court, are bound by the action of the court. We shall hold, 
therefore, for the present, that the act is warranted by the 
Constitution." And in the following cases it will be seen 
that the constitutionality of the act has been either ex- 
pressly or impliedly affirmed. Prize Cases, 2 Black, 035 ; 
2 Sprague, 123; Blatch., P. C, 119; Mrs. Alexander's 
Cotton, 2 Wall., 406 ; Union Ins. Co. vs. United States, 



45 

6 Wall. J 754; Armstrong Foundry, lb., Y66 ; St. Louis 
Foundry vs United States, lb., 7*70 ; 30 Indiana, 5. 

And the Court of Claims, in an elaborate and well-consid- 
ered o})ini()n, in what are called " The Cotton Cases," (2 
Court of Claims Reports, 529,) through Chief Justice Casey, 
unanimously said : "In regard to the seizure of the enemy's 
private property on land, Congress, by a series of enact- 
ments pending the recent rebellion, have so distinctly 
specified the property subject to capture and confiscation, 
that nothing scarcely is left for judicial construction. Their 
right and constitutional power to do so cannot be ev-en 
plausibly controverted." 

The only seemingly exception to this uniform and resist- 
less current of authority in favor of the validity of the act, 
is the case of Norris vs. Doniphan, 4 Met., (Ky.,) R., 385. 
But, as the decision in that case is based entirely upon the 
supposition that the Government did not possess the same 
belligerent rights in a civil war which it had in a foreign 
one, it^ too, must be taken as fully supporting the constitu- 
tionality of the act, since it is conclusively settled by the 
Supreme Court of the United States, in the Prize Cases, that 
the Government possesses the same rights in a civil war 
which it has in a foreign war ; and the Kentucky court in the 
above case (4 Met., 392, 393) explicitly and unqualifiedly 
admits that if such be the case, tlien there can be no 
doubt whatever as to the constitutionality of the act. 

The act of confiscating enemy property is but a high act 
of reprisal and war, and necessarily and exclusively inciden- 
to a state of war, and the right so to do resides in the wart 
repelling as well as war-making power. 

In Knoefel vs. Williams, 30 Indiana R., 5, the court 
well says : 

' 'It is ohjecled that this law is unconstitutional. It is argued 



46 

that this act is an act for the punishment of treason, and 
that it deprives the person implicated of a trial before the 
punishment. But we apprehend tliat confiscation acts 
stand on a niucli broader basis. Congress has power to 
' provide for the common defence and general welfare of the 
United States;' * * * 'to provide for calling forth 
the militia to execute the laws of the Union, suppress insur- 
rections, and repel invasions ;' * * * ' and to make 
all laws which shall be necessary and proper for carrying 
into execution tlie foregoing powers, and all other powers 
vested by this Constitution in the Government of the United 
States, or in any department or officer thereof.' Const. U. 
S., Art. I, sec. 8. Tlie act in question is clearly unthin the 
powers thus conferred on Congress. * * * * 

"There is no limit on the war -poicer of the United States, 
except such only as is imposed by the law of nations. And 
in this respect there is no difference between a civil and a 
foreign war. Congress has as much poiver to 'suppress in- 
surrections' as to ' repel invasions.' Resort maybe had to 
any means known and recognized by the laws of war." 

Congress must, then, of necessity, have the power to say 
in what mode and manner i)roperty may be taken and con- 
demned as enemies' property. It has the right to select its 
own mode and means for carrying on war. It is the sole 
and only judge of the means to be used in war. It deter- 
mines the character and number of tlie troops to be employed. 
It appropriates without restriction all the money and means 
it deems necessary to insure the success of the war. Peace 
and war depend upon its own unlimited will. It says let 
there be war, and there is war. And the President and 
Senate have but to say let tliere be peace, and there is peace. 

Who, tlien, shall question the power of Congress (and 
that, too, under the Constitution) as to tlie means of war, 



47 

and as to the manner in which it shall enforce rights which 
are incident to a state of war? Its discretion and will in 
such matters are unquestionably beyond control, and, when 
made known, must form the rule of decision for the courts, 
and be regarded as a valid and a constitutional exercise of 
power. 

ATTAiNDKR. 

VI. The Act not a Bill of Attaiuder. 

It has been said that the act is a bill of attainder, and 
that as it is provided in the 3d paragraph of section 9, Arti- 
cle I, of the Constitution of the United States, that " no 
bill of attainder or ex post facto law shall be passed," the 
act is^ therefore, unconstitutional and void. This is a great 
mistake, and deserves to be answered. The act in question 
possesses no one of the essential requisites of a bill of 
attainder. 

Bills of attainder are acts of the sovereign power pronounc- 
ing capital sentences, where the Legislature assumes judicial 
magistracy ; and hills of pains and penalties, those which of 
themselves inflict milder punishments. They are legislative 
acts, passed for the special purpose of attainting of them- 
selves particular named individuals, of treason, or felony, 
or inflicting pains and jienalties beyond or contrary to the 
Common Law. See 1 Tucker's Black Com , 292. 

This is implied by the Supreme Court of the United States 
in the case of Fletcher v. Peck, 6 Cranch, 138, where it is 
said, "A bill of attainder may aflect the life of an individ- 
ual, or may confiscate his property, or both." 

It is the legislative punishment of o. particular individual 
or individuals by legislative enactment solely, without the 
intervention of any judicial authority or proceeding whatso- 
ever, either in personam or iyi rem, that constitutes an act a 
bill of attainder. A bill of this nature and character no 



48 

one, ill this country, would say could be constitutionally 
passed, either hy the State or National Legislature. But 
that Congress may prescribe tliat tlie doing or not doing of 
a certain act shall he illegal, and provide a forfeiture of 
property as a penalty for a violation of the law, must he ad- 
mitted. When a party violates the law, the forfeiture rightly 
accrues to the Government as a punishment annexed by law 
to the illegal act or omission of duty. 

It would he impossible, therefore, to hold the provisions 
of the statute in question a bill of pains and })enalties, much 
less a bill of attainder. 

No personal punishment is contemplated or provided for 
in those sections of the statute under which proceedings in 
confiscation were had. 

There is no legislative taking of the property of any par- 
ticular individual or individuals. The forfeiture arises by 
reason of the conduct of the parties after the passage of the 
law. On tliis principle, statutes forfeiting ships, goods, and 
other property have been uniformly sustained and enforced. 
It is, therefore, evident that there is no ground whatever for 
saying the act is a bill of attainder, or even a bill of pains 
and penalties. 

SKIZURK. 

VII. Seizures made hij any one, with or ivithout instructions 
from the President, valid if property condemned. 

The statute says the property of the persons named therein 
shall be liable to seizure and forfeiture, and it is made the 
duty of the President to cause the seizure of the same. It 
is, therefore, seen that the statute is mandatory , and left no 
discretion in the President as to the seizure of the property 
of persons coming within the act. Seizures, then, made by 
subordinate officers, in pursuance of instructions from the 



49 

Attorney General, (who is presumed to represent the Presi- 
dent,) must be taken and regarded as made by tlie author- 
ization of the President. 

And this must more especially be so considered where the 
proceedings not only show such to be the case, but also show 
the further fact that the property was seized by the marshal 
in pursuance of process issued from the court in which the 
proceedings were instituted. For the court certainly 
acquired jurisdiction by a seizure under its process, even if 
it did not possess it before, under and by virtue of the first 
seizure. Besides, the law is too well settled to admit of 
doubt or controversy, tliat any person may seize property 
for a forfeiture^ and if the Government comes in and 
institutes proceedings to enforce the forfeiture, it will be 
considered a ratification of and equivalent to a previous 
command or authority to make the seizure. Blatch. P. C, 
64, 65, 89, 90, 306, 309, 561 ; The Caledonia, 4 Wheat., 100, 
103; Taylor vs. United States, 3 How., 197, 205-6. The 
filing of the libel is the ratification of the seizure. Blatch. 
P. C, 561 ; ib., 309. 

The cases of Coppel v. Hall, 1 Wal., 542 ; The Ouichita 
Cotton, 4 ib., 521 ; The Ecform, 3 ib., 617 ; and Gelston v. 
Hoyt, 3 Wheat., 246, do not (as has been supposed) in the 
least conflict with the foregoing views and authorities. 
The cases in Wallace related to trade and intercourse with 
the States in insurrection ; and the defence to avoid a for- 
feiture was a license and authority from subordinate officers 
of the Government. 

But the court very properly held that as trade and inter- 
course with the enemy was unlawful, unless specially au- 
thorized and allowed by the President, who alone was em- 
powered by the statute in liis discretion to authorize and 



50 

permit it, the power could not be exercised by any one else, 
either with or without the sanction of the President ; and 
the defence was, therefore, unavailing and the property con- 
demned. 

And the case in 3 Whe:it. was an action for trespass for a 
seizure which had been adjudged tortious, for a forleiture 
under the neutrality act ; and the defence was a justification 
that the seizure was made under and by virtue of instiuc- 
tions and authority from the President of the United States. 
But the court very properly overruled the defence, on the 
ground that the President, under the act, could not use any 
force outside of the army and navy for that purpose, and 
that he was only authorized to act and was restricted b}'' the 
statute to the use of the army andnavy, where the civil au- 
thority was resisted, or was, in his judgment, insufficient to 
Enforce and execute the laws. 

Such a case surely cannot be regarded as at all inconsist- 
ent or in conflict with the foregoing authorities, which estab- 
lish beyond all doubt the validity of seizures of property for 
confiscation, under act ITth of July, 1862, whether made 
solely by the order of the~ President, or by the marshal in 
the first instance, by the directit n of the district attorney^ 
in pursuance of instructions from the Attorney General^, and 
also by virtue of process issued out of the courts after the 
first seizure and the filing of the libels. 

Indeed, the case of Gelston v. Hoyt, 3 Wheat., 240, itself 
expressly affirms and declares the rule to be, that at Com- 
mon Law any person may, at his })eril, seize for a forfeiture, 
and that if the Government comes in and adopts his seizure 
and the projicrty is condemned, it will be a complete justifi- 
cation of the seizure. 



51 



MODE OF PROCEEDING. 

VIII. The Act is not unconstitutional hy reason of its author- 
izing and requiring proceeduigs , for the purpose of condem- 
nation, to he in rem. 

The first question that naturally arises in this branch of 
the case is, what is the nature and character of a proceeding 
in rem ? Is it a criminal or a civil proceeding ? The an- 
swers to these inquiries must have a decisive influence in 
determining the validity of the confiscation proceedings 
under the act. 

A proceeding in rem is one which has for its object the 
fixing of the status of a particular thing ; that is, of deter- 
mining whether it is or is not forfeited. In Gelston v. Hoyt, 
13 J. E., 584^ Chancellor Kent, in speaking on this subject, 
says: " In a case in the Excliequer, where the goods are 
themselves seized and libeled as being forfeited to the Gov- 
ernment, and which is termed a proceeding in rem, the ques- 
tion of forfeiture is the only question that can be made." 
Mr. Justice Story, in the same case, before the Supreme 
Court of the United States, (3 Wheat., 312-13,) in reference 
to the nature of proceedings in rem, said : " All persons hav- 
ing an interest in the subject-matter, whether as seizing 
officers, or informers, or claimants, are parties or may be 
parties to such suits so fiir as their interest extends. The 
decree of the court acts upon the thing in controversy, and 
settles the title of the property itself, the right of seizure, 
and the question of forfeiture.'" And again, at page 318 of 
the above case, this same eminent jurist says : " Where 
property is seized and libeled as forfeited to the Government, 
the sole object of tlie suit is to ascertain whether the seizure 
be rightful and the forfeiture incurred or not. The decree 
of the court, in such case, acts upon the thing itself, and 



52 

binds the interests of all the woi'ld_, whether any party actually 
appears or not. If it is condemned, the title of the property 
is completely changed, and the new title acquired by the 
forfeiture travels with the thing in all its future progress. 
If, on the other hand, it is acquitted^ the taint of forfeiture 
is completely removed, and cannot be re-annexed to it." 

And in the case of the State v. Barrels of Liquor, 47 N. 
Hamp., 3G9, it is held that a complaint for the condemna- 
tion of property is a proceeding in rem, for the purpose of 
determining merely whether the property proceeded against 
is forfeited or not, and is not a proceeding against any per- 
son. 

It is, therefore, seen, from the nature and character of a 
proceeding in rem, that it is a proceeding against a particular 
thing, in order to fix its status ; that is, to determine whether 
it is or is not forfeited ; and this without any reference to any 
party or parties in interest, whether within or without the 
country. It would seem, then, to be clear tliat there is no 
ground for ol)jection to the statute, because it does not re- 
quire any personal proceedings against the party or owner 
of the property proceeded against for a turfeiture. 

For, it is well settled by an unbroken current of authority 
that proceedings in rem for a forfeiture or an action for a 
penalty are not criminal but civil proceedings. Markle vs. 
Acron, 14 Ohio, 491 ; State vs. Barrels of Liquor, 47 N. 
Hamp., 3G9. Anonymous case, 1 Grail. R., 23; Ketland 
vs. The Cassius, 2 Dall., 3G5 ; United States vs. The Sally, 
2 Cranch R., 40G ; United States vs. The Betsey and Char- 
lotte, 4 Cranch, 443; 3 Sum. R., 120, 121; 3 Bl. Com., 
159; 12 Wheat., 12, 13 ; Barancoat et al. vs. (xunpowder^ 
1 Met. R., 230; Earl Spencer vs. Swannell, 3 M. & Welb. 
R., 1G2; Attorney General vs. Rogers, 11 M. & W., G70 ; 
37 Me. R., 330, 333. 



53 

In the case of the United States vs. La Vengeance, 3 Dall., 
297, Avhich was an information to forfeit a vessel for viohition 
of a law prohibiting the exportation of arms and ammunition. 
Chief Justice Marshall said : " We are unanimously of opin- 
ion that it is a civil cause ; it is a process in the nature of a 
libel in rem; it does not, in any degree, touch the person of 
the offender. " S. P., 47 N. Hamp., 369. 

In Barancoat et al. vs. Grunpowder, 1 Met., 230, Chief 
Justice Shaw says : " The court are of opinion that a libel, 
sued as a process in rem for a forfeiture, is in the nature of a 
civil action, and that either pirty may file exceptions in 
matter of law." 

So in the case in 1 Grail., 23, Mr. Justice Story said : "It 
is not true that informations in rem are criminal proceedings. 
On the contrary, it has been solemnly adjudged tliat they 
are civil proceedings."' 

Martin, J., in an elaborate an I well-considered opinion, 
in The State vs. Williams, 7 Rob., La. R., 266-7, reviewed 
all the leading authorities, and held that a penal action, or 
an action to recover a penalty, was a civil and not a criminal 
proceeding. 

Judge Martin, in the above case, well says: "The 
statutes of Jeofails and amendments do not extend to criminal 
proceedings ; but it has been invariably held that penal 
actions are within these statutes, and may be amended. 1 
Bac. Abr. Title Amendment and Jeofails, A. and C; 2 Str., 
1227 ; 2 Dallas, 143 ; 1 Gallison, 23. 

"In cases of acquittal on criminal prosecutions no new trial 
can be granted ; but new trials may be granted in penal 
actions. 4 Bl. Com., 361, 362 ; 1 Durnford & East, 753. 

" Judge Story says : 'At Common Law, whenever a penalty 
is given, and no method of recovery is prescribed by the act, 
an action of information of debt lies, and not an indictment.' 



54 

He cites, in sup})ort of this position, '2 Strange, 828, and 2 
Crancli, 33G. See 2 Gallison, 554. In the case of The 
United States vs. Lyman, the same doctrine is again pnt 
forth with great clearness. 1 Mason, 498. 

" In 1838, the doctrine is once more explicitly declared 
by Judge Story, after a full examination. He says : ' The 
usual remedy in cases of a pecuniary penalty is an action 
or information of debt ; and an indictment for such a penalty 
will not lie, unless specially allowed by statute, for it is 
properly recoverable as a debt in a court of revenue by the 
Government, and is, in no just sen e, aciiminal proceeding.' 
3 Sumner, 120, 121." 

Even an exchequer information for penalties is a civil~ 
proceeding; it is the "king's action of debt," Cawthorne 
vs. Campbell, 1 Anst., 205, N., 214; Attorney General vs. 
Freer, 11 Price, 183, per Graham, B., 185. 

And in the case of The United States vs. Mann, 1 Gall. 
R., 178-9, Mr. Justice Story says : "For I take it to be 
clear, that an information of debt in tlie exchequer for a 
penalty is as much a civil proceeding as an action of debt. 
Nor would it be any objection to this construction, even 
admitting it to be true, that in this manner the jurisdiction 
of the court would depend, not upon the subject-matter, but 
on the mode of prosecution. For, without question, all 
infractions of public laws are oifences ; and it is the mode of 
prosecution, and not the nature of the prohibitions, which 
ordinarily distinguish penal statutes from criminal statutes." 

In the case of the Palmyra, (12 Wheat., 12-13,) the Su- 
preme Court of the United States uses this emphatic lan- 
guage : " The strict rules of the Common Law as to criminal 
prosecutions have never been supposed by this court to be 
required in informations of seizure in the admiralty for for- 
feitures, which are deemed to be civil proceedings in rem." 



55 

Proceedings in rem, then, for a forfeiture, although the 
forfeiture is intended as a punishment by the hxw-maker for 
the violation of law, are not to he regarded as criminal, but 
as cti;i7 proceedings. 

And in civil proceedings or prosecut'ons for penalties and 
forfeitures there is no occasion for the intervention of a grand 
jury and an indictment, but the process is that of informa- 
tion or libel filed by the law-officers of the G-overnraent. 
2 St. Const., § 1786. 

In Markle v. Akron, 14 Ohio R., 590, 591, Wood, C. J., 
says: "It is true, for offences, strictly criminal or infa- 
mous, punishment can only be inflicted through the medium 
of an indictment or presentment of the grand jury. Con., 
Art. VIII, sec. 10. There are, however, many offences, made 
so by statute, which are but quasi criminal, and where the 
Legislature may direct the mode of redress, untramelled by 
this constitutional provision," 

And in the case of the State v. Barrels of Liquor, 47 
New Hamp., 374, Mr. Justice Sargent, in reference to the 
question whether a proceeding in rem was to be tried as a 
criminal or a civil case, &c., said : " This is a proceeding iii 
rem, for the condemnation of the liquor and vess.ds. No 
penalty or fine is to be imposed upon the person who keeps 
the liquor with intent to sell under this proceeding. All that 
is done, or that can be done, under this complaint, is to set- 
tle the question whether the liquor, vessels, &c., sliall be 
condemned as forfeited to the country, or shall be delivered 
to the claimants or restored to the place from whe:ice they 
were taken. It is a proceeding which cannot be commenced 
by indictment, and the complaint which is made in the first 
instance is in the nature of a libel, such as ch. 204 Rev. 
Stats, provides for, and not in the nature of a criminal com- 
plaint against any person, but is simply a proceeding m 



56 

rem against the liquors, &c., for tlieir condemnation as for- 
feited property, &c. 

^' This class of cases are to be considered and tried as civil 
causes are tried. The question involved is only as to the 
title to property^ like other questions in civil causes. It is 
only when some crime or misdemeanor is charged upon 
an individual that all reasonable doubt of the guilt of the 
accused must be removed. But here no one is accused of 
any crime ; in fact, it is not a proceeding against any person." 

So, under the act of 18r)2, the proceedings are strictly 
civil and in rem, 12 U. 8. Stat., 591, § 7. And in such 
cases, as well as those where tlicre is both a forfeiture and a 
personal penalty, no conviction of the party is necessary to 
enable the Government to enforce the forfeiture in rem. The 
Palmyra, 12 Wheat., 1, 14, 15 ; United States v. Dry Goods, 
17 How. , 85, 91 , 92, 93. The property is divested by the for- 
feiture, (by the failure to re! urn to their allegiance in the 
prescribed lime,) and all sales even to a bona fide purchaser 
without notice would be void. 12 U. S. Statutes, 591, sec. 
6 ; United States v. Bags Coffee, 8 Cranch, 398 ; Caldwell v. 
The United States, 8 How., 36G, 381, 382 ; United States v. 
Morris, 10 Wheat., 246; Fontaine v. Phoenix Ins. Co., 11 
J. R., 300; 3 Wheat., 311, 327. 

For " where a forfeiture is given by a statute, the rules of 
the Common Law" (which require legal steps to be taken 
befoie the property vests) ''may be dispensed with, and the 
thing forfeited may either vest immediately or on the per- 
formance of some particular act, as shall be the will of the 
Legislature." United States y. Grundy, 3 Cranch R., 350. 
Per Marshall, Cii. J. In the nature of things, then, pro- 
ceedings in rem for the enforcement of forfeitures and penal- 
ties cannot be regarded in any otlier light than as civil pro- 
ceedings, and are in no way dependent on the prosecution 



57 

and conviction of the offending party. The Palmyra, 12 
Wheat., 14, 15. 

For the seizure and condemnation of property hy a pro- 
ceeding in rem for a forfeiture may (and often does) take 
place when there is no personal penalty prescribed, and 
where^ if there was, it would not be possible to proceed 
against tlie party personally for a violation of law by rea- 
son of his absence. And laws authorizing proceedings in 
rem may be enforced against tlie property seized when the 
real owner may not, in point of fact, be informed thereof. 
Gray v. Kimball, 42 Me., 299. 

In all " criminal proceedings against a party for a capital 
or otherwise infamous crime," the provisions of the Amend- 
ments 1o the Constitution of tlie United States undouhtedhj 
require the trial and conviction of the party by jury, after a 
presentment or indictment by a grand jury. But in all civil 
proceedings, even in times of peace, ^ ^ due process oi law" 
is all that is re<|uired in order to deprive one of his prop- 
erty, or enforce a penalty. 

What, then, is " due process of law?" 

Chancellor Kent, after adverting to what is due process of 
law in criminal cases, says : " But the better and larger defi- 
nition of due process of law is, that it means law in its reg- 
ular course of administration through courts of justice." 1 
Kent's Com., 624, 625, 10th edition. 

In Fisher v. McGirr et at., 1 Gray's R., 27, 28, Chief Jus- 
tice Shaw says : ''We have no doubt that it is competent 
for the Legislature to declare the possession of certain arti- 
cles of property, either absolutely or when held in particu- 
lar places, and under particular circumstances, to be unlaw- 
ful, because they would be injurious, dangerous or noxious; 
and, by due process of law, by proceedings in rem, to provide 
both for the abatement of the nuisance and the punishment 



58 

of tlie offender, by tlic seizure and confiscation of the prop- 
erty, by the removal, sale, or destruciion of the noxious ar- 
ticles. Therefore, as well to abate the nuisance as to pun- 
ish the offending or careless owner, the property may be 
justly declared forfeited, and either sold for the public 
henefit or destroyed, as the circumstances of the case may re- 
quire, and the wisdom of the Legislature may direct. Be- 
sides, the actual seizure of the property intended to be offen- 
sively used may be effected, when it would not be practicable 
to detect and punish the offender personally." 

In this decision we have a clear recognition of the doctrine 
that a proceeding in rem, by which a party may l)e deprived 
of his property, is ^ ^ due process of law," and that it is com- 
petent for the Legislature to provide this mode of proceeding 
against property because of a violation of the requirements 
of a statute by the owns'r or those who have the control of 
the same. 

It is true, the court held the act of the L'^gislature involved 
in that case illegal and void, but the decision was rested 
mainly on the ground that ''no provision is made by the 
statute for a trial, for a determination by judicial proofs of 
the facts, upon the truth of which alone the property can be 
justly confiscated and distroyed." " The judgment, then, 
passes without trial and without proof, unless that which 
preceded the seizure, and the seizure itself, are to be consid- 
ered as legal proof." lb., 36. 

This case, therefore, so far from being an authority against, 
must be considered as fully warranting and justifying pro- 
ceedings 171 rem under the act of 1862, as being '' due 2)roccss 
of law. ' ' 

Indeed^ it is perfectly apparent, from the above case, that 
if the statute had provided for and required regular and 



59 

legal proceedings in rem, it would have been held legal and 
constitutional. See 1 Gray, 48-9. 

Do not parties forfeit their ships;^ goods_, &c., by a viola- 
tion of the provisions of the revenue laws, and are not these 
forfeitures enforced by proceedings in rem ? And if this may 
be done in reference to peiS'.mal property, why may not the 
same mode of proceeding be adopted in reference to any and 
every description of property ? If the one may be taken and 
confiscated under a j^jroceeding in rem, why may not t!ie 
other betaken in like manner? Would there not be due 
process of law as much in the one case as in the other? 
Most assuredly there would. 

It has, moreover, been held by the highest authority that 
due process of law means such process as has been usual, and 
is authorized by the law-making power. 18 How. K., 272 ; 
7 Ann. (La.) R., 292. In the first of thesj case.^ process 
issued direct from the Treasury for a balance due the Treas- 
ury, and in the latter for the collection of taxes, without any 
resort whatever to any cuurt, and yet in b.)th cases the pro- 
cess was hehl to be due process of law. 

How can it be doubted, then, that the proceedings in rem 
under the act in question are legal and constitutional ? 
Here is a well-known and long-established mode of proceed- 
ing in a court of justice. Here all the world are parties^ 
and have notice by seizure, as well as by publication of 
monition, and may come in and be heard if they see fit. 
The opportunity is then afforded to every one claiming an 
interest in any property proceeded against to come in and 
establish his right to the same, and if he fails or neglects so 
to do, the proj)erty is then condemned according to law in 
its regular course of administration through courts of justice, 
and the judgment of condemnation or acquittal is binding 



CO 

upon all the world. 13 J. R., 561 ; 42 Me. R , 443, 430 ; 
Gelston vs. Hoyt, 3 Wheat., 247, 312. 

The attem})tc(I distinction that it is only in those cases 
where tlie thing is considered as the offender that a proceed- 
ing in rem can be sustained, is quite a mistake. 

""Most of the forfeitures" (says Conkling in his Treatise, 
548, 4th ed.) denounced by our laws, are imposed for omit- 
ting to do some act enjoined by law.'" 

In the case of the United States v. Grundy et al., 3 Cranch 
R., 337, it was decided that, under the act of Congress of 
December 1792, which declares that if a false oath betaken 
in order to procure a register for a vessel, the vessel, or its 
value, shall be forfeited, the United States had an election 
to proceed against the vessel as forfeited^ or against the per- 
son who took the false oath, for its value. In Fontaine v. 
The Phoenix Ins. Co., 11 J. R., 293, 300, the Supreme 
Court of New York, after referring to the case in 3 Cranch, 
and after recognizing the correctness of the same, says : 
"The act of 1792 gives two remedies, the forfeiture of the 
vessel, or the value, to be recovered from the person who 
took the false oath ; consequently, the remedy is at the elec- 
tion of the United States. The property, therefore, could 
not vest until the seizure. The act in relation to the case 
before us" (the non-intercourse act of 1809) "affords but 
one remedy, and that is tlie forfeiture of the vessel, so that 
the seizure is not necessary to change the property ; the 
owner loses his right to it immediately after tlie commission 
of the act producing the forfeiture." 

Here we have a clear statement of the princii)le on which 
the law of forfeiture is based. And that principle is, that 
the party loses his right to the thing by reason of his own 
act, and not the act of the thing, which has no power or 



61 

capacity to act of itself, and which is indispensable to make 
it an offending party. 

Again, in the case of the Fire Department v. Kip, 10 
Wend.^ 270, the court, after referring to the statute pro- 
hibiting the keeping of gunp )\vder within certain limits, 
says: " Tlie property would become forfeit by the act of 
keeiting it contrary to law." Here it is again said that the 
property would be forfeited in consequence of the act of the 
owner. There was no thought or idea in the mind of the 
court of an offending thing. So, under the act of July, 
1838, a party running a boat without license is liable to a 
penalty of $500, and for which sum the boat or vessel so en- 
gaged shall be liable. This latter provision, it has been 
held, " is simply used to give a remedy by libel against the 
boat." 1 Newberry's R., 2G9. The boat, then, in such 
case, could not be considered the offending thing ; but it is 
the disregard of the injuction of the law by the owner that 
renders the vessel liable to seizure and forfeiture. It is not 
the use of the boat that causes the forfeiture, but it is the 
disregard of the requirement to procure a license that gives 
rise to the penalty. So under the ship registry act of 31st 
December 1T92, where a registered vessel, or a part thereof^ 
is sold or transferred by way of trust to a subject or citizen 
of any foreign prince or state, for the purpose of evading the 
revenue laws thereof, and such transfer is not made known 
as required in the act, the vessel becomes forfeited. 9 Wheat., 
421. And if the register of a vessel thus transferred is used 
after such transfer, the vessel is also liable to forfeiture for 
this cause. The Margaret, 9 Wheat., 421. So^, under the 
sixty-seventh section of the act of 1796, a libel in rem for 
a forl'eiture of goods by reason of their differing in de- 
scription from the contents of the entry, is a proper remedy. 
200 Chests Tea, 9 Wheat., 430. In the case of the United 



62 

States V. The Anthony Magin, 2 Pet. Adra. R., 409-70, 
Judge Winchester well says : '• The (rovernnient prohibits 
an act under a penalty against the party offending. They 
say, we for this forfeit the thing in respect to which you 
have sworn falsely, if it continued in existence, and is yours, 
but if lost or destroyed, or other persons innocently acquire 
new rights in that thing, your guilt s-hall still be punished ; 
if annihilated^ — if sold — pay the value ; if you have fraudu- 
lently impaired the thing, still paij the value; the one or 
the other shall be recovered of rjou — -af you, the guilty 
party." 

Is there any offending thing in cases of the foregoing 
character? Certainly not. 

In the case of The Palmyra, 12 Wheat., 14-15, Mr. 
Justice Story, says : ''It is well known tliat at the Com- 
mon Law, in many cases of felonies, the jiarty forfeited his 
goods and chattels to the Crown. The forfeiture did not, 
strictly speaking, attach in rem ; but it was a part, or at 
least a consequence, of the judgment of conviction. It is 
plain from this statement that no right to the goods and 
chattels of the felon could be acquired by the Crown by the 
mere commission of the offence ; but the right attached 
oily by the conviction of the offender. The necessary re- 
sult was, that in cases where the Crown souglit to recover 
such goods and chattels, it was indispensable to establish 
its right by producing the recorl of the judgment of con- 
viction. In the contemplation of the Common Law, the 
offender's right was not divested until the conviction. But 
this doctrine never was applied to seizures and forfeitures, 
created by statute in rem, cognizable on the revenue side of 
the exchequer. The thing is here primarily considered as 
the offender, or rather the offence is attached primarily to 
the thing ; and this, whether the offence be malum prohibi- 



63 

turn or malum in se. The same ])rinciple applies to proceed- 
ings in rem, or seizures in the admiralty. Many cases exist 
where the forfeiture for acts done attaches solely in rem, and 
there is no accompanying penalty in personam. Many cases 
exist where there is both a forfeiture in rem and a joersonal 
penalty. But in neither class of cases has it ever been de- 
cided that the prosecutions were dependent upon each other. 
But the practice has been, and so this coui't understands the 
law to he, that the proceedings in rem stand independent of 
and wholly unaffected by any criminal proceeding in per- 
sonam.'' '"' No personal conviction of the offender is neces- 
sary to enforce a forfeiture in rem in cases of this nature." 
S. P., 2 Black., 672-3 ; 6 Am., L. Reg, (N. S.,) 32, 40-1 ; 47 
N. Hamp., 369. 

From this decision, as well as the foregoing authorities, 
it is clear that the forfeiture of property is based on the act 
of the owner, and not on the ground that it is an offending 
thing. True, the court speaks of an offending thing, but 
it immediately changes the language and puts the forfeiture 
on the true ground, as will be seen by the following pas- 
sage : '' The thing is here primarily considered as the 
offender, or rather, the offence is attached primarily to the 
thing ; and this, whether the offence he malum j^rohibitum or 
malum m se." The thing, then, is certainly not to be con- 
sidered as the offender, but the penalty for the offence of the 
party is primarily attached by law to the thing, and thus 
becomes forfeited ]jy reason of the act of the owner or those 
whom he has entrusted with, the control and management of 
the thing, and are, therefore, for the time being, to be con- 
sidered as the owners. 

It is on this ground that the vessels of innocent owners 
are forfeited by reason of the acts of those who have them 
in possession. It is not because the vessel is considered as 



64 

the offending thing that it is forfeited, but because of the 
acts of those whom the careless or deceived owner has en- 
trusted with tlic use and raanagenient of the property, and 
the ''offence is attached })rimarily to the tiling," that is, 
the forfeiture attaches primarily to the thing for the acts of 
those wlio are the apparent owners. This is the true 
ground on which the doctrine of forfeiture is based. It was 
on this principle that some of the confiscation acts of the 
Revolution were founded. 

By reference to the case of Martin v. The Commonwealth 
et al., 1 Mass. R., 385-G, it will be seen that the forfei'ure 
Avas claimed and enforced by a proceeding j?i rem, because 
of the absence of the owner of the property and his failure 
to return to the State as required by law. Now, this is a 
parallel case in princi})le to the one before the court. The 
proceedings in that case, as in this, were because of the act 
of tlie owner in not returning to his allegiance, as required 
by law ; and the forfeiture was not claimed on the ground 
that the property was an offending thing, but it was 
claimed, and rightly claimed, because " the offence " (that 
is, the penalty of forfeiture) "is attached primarily to the 
tiling," because of the failure of the owner of the thing to 
obey the mandate of the law. 

So in Pennsylvania, a party's })roperty was Ibrfeited 
because he failed to return to the State as re(|[uired by law, 
and stand his trial for high treason. Ash v. Ashton, 3 
Watts & Serg. R , 510. The property was forfeited because 
of non-compliance of the owner with the requirements of 
the law, and not because it was or could become an offend- 
ing thing. And so property acquired by an alien is for- 
feited to the king; but it is not forfeited because it is an 
offending thing. It is forfeited, as Mr. Justice Blackstone 
says, "by way of punishment for the alien's presumption 



65 

in attempting to acquire any landed property." 1 Bl. Com., 
372. 

And " every State may absolutely forbid its subjects to 
do any given things wherever they may be, provided they 
do not enforce that prohibition by any act of jurisdiction 
exercised out of its own territories, and within those of 
another State. And the subject so offending may be com- 
pelled to return home, or punished on his contumaciously 
remaining abroad, by process against his property situated 
in his own country." Bowyer's Univ. Pub. L., 181, See 
18 How., 114. 

This being the law, there is really no foundation what- 
ever for the doctrine of an offending thing. 

To say that an inanimate thing, incapable of volition or 
action, is an offender against the law, is a mere rhetorical 
flourish — an attempt, by the use of figurative language, 
not only to personify the thing, but to turn the mind from 
the consideration of the individual offender and tlie nature of 
the offence against which the law was made, and to jumble 
together ftict and fancy, law, logic, and imagination. 
It is bad in every point of view — a poor specimen of legal 
metaphor, of strained fiincy and foggy metaphysics. In- 
deed, it is but a legal fiction, which, like the ''Will-o'-the- 
wisp," or Jack with his lantern, the more it is admired and 
the further it is pursued, the greater the dangers and delu- 
sions to which it subjects, to say nothing of the inextricable 
and perplexing quagmires into which it leads its charmed 
pursuers. 

How idle and visionary, then, to talk about an offending 
thing ! Property commits no crimes. But it is just and 
proper, when crimes are committed or the majesty and man- 
dates of the law are not respected and obeyed by those who 
possess property situate in the country whose laws they set 



6r. 

at defiance, that the offenders should be punished through 
the forfeiture of property, and a forfeiture enforced by a pro- 
ceeding in rem, whether they are or are not beyond the reach 
of the process of law. If they are personally beyond the 
reach of tlie process of the court, are their crimes against 
their country to go unpunished? Certainly not. And if 
the}^ be witliin the country, (and no enemy is more dan- 
gerous,) it is competent for Congress to prescribe whether 
the punisliment shall be personal, or whether the violated 
majesty of the law shall be atmed for by forfeiture of 
the property of the offending party. There is n 'thing, 
then, in the doctrine of offending thing. 

The iiroceeilings required and contemplated by the statute 
are precisely in nature and extent what a proceeding in 7'em 
is against a vessel or goods for a violation of law by the 
owner or possessor thereof. See 12 U. S. Stat., 501, § 7. 

True, all the world are parties, or may be so if they choose 
to come in and propound their interest in the proper form, 
but this does not vary the nature or character of the suit. 

Even if a claimant appears and puts in his claim, still it 
is but a suit in rem. Gilpin's K., 314, olo. In this case. 
Judge Hopkinson says : " (Jertiiiu persons come in and deny 
the forfeiture, and claim the goods as tlieir property. But 
they are not substituted as defendants in the cause. It 
stands, in this respect, as it did before tlie claim was put in. 
The goods are brought under the authority and control of 
the court, and two parties appear to claim them, and the 
judgment of the court is to decide to which of the claimants 
they rightfully belong. The action or proceedings of both 
is upon and against tlie goods in the custody of the court, 
and there is, legally speaking, no party defendant in the 
case." S. P. 24, How , 436 ; 18 How., 503 ; 2 How., 338 : 
2 Wallace, 216. 



67 

" Libellant and claimant are both actors." 4 Cranch, 23. 
^' The proceeeings of that court are in rem, and their sen- 
tences act on the thing itself." lb. 

From the nature and character of a proceeding in rem, 
then, under the statute, it cannot, in any legal sense, be 
said to be a suit in personam, and that a conviction of the 
party is necessary to enforce the forfeiture, under the act. 
Indeed, such a thing would be impossible in a proceeding 
for a forfeiture. 47 New Hamp., 374-5; 6 Am. L. Keg., 
(N. S.,) 40. 

For it is expressly provided in the seventh section of the 
act of 1862 (12 U. S. Stat., 691) as follows: ''That to 
secure the condemnation and sale of such property, after 
the same shall have been seized, so that it may be made 
available for the purposes aforesaid," (that is, for the support 
of the army, as provided in the fifth section,) "proceedings 
in rem shall be instituted in the name of the United States; 
in any district court thereof," and " which proceedings shall 
conform as nearly as maybe to the pr.>ceedings in admiralty 
or revenue cases." 

It is, therefore, a proceeding which could not be com- 
menced by indictment. State i'. Barrels of Liquor, 47 N. 
Hamp., 369, 374. 

And that a proceeding in rem, although a civil proceed- 
ing, as we have seen, is a proper and constitutional mode of 
enforcing the provisions of a highly penal statute solely 
against property, there can be no doubt. United States v. 
Eighty-four Boxes Sugar, 7 Pet., 450; 19 How., 92, and 
foregoing authorities, and C5pecm% The Palmyra, 12 Wheat., 
1, and Prize Cases, 2 Black, 672, 673 ; 6 Am. Law Reg., (N. 
S.,) 32, 40-1 ; 47 New Hamp., 369. 

For where the seizure is within the admiralty jurisdiction 



68 

the trial is by the court, as juries do not intervene in pro- 
ceedings in admiralty. 5 How., 460 ; 3 Dall., 297. 

And where the seizure is made on land the proceedings 
are on the Common Law side of the court, and issues of fact 
are triable by jury. Armstrong Foundry, 6 Wall., 766. 

But in case of a default the rule is, as was said by Chief 
Justice Chase, in Semple v. the United States, in the cir- 
cuit court at Richmond, " The cause was suffered to go by 
default, and there can be no direction of trial by jury where 
no issue is made up and no such trial demanded. On the 
contrary^ it is the constant practice to render judgment of 
forfeiture in such cases by default, without the intervention 
of a jury." Conkling's Pract., 568. See 50 Barb., 385, 
394. And the same rule was laid down by Judge Ware, 
in the Mary Ann. Ware's R , 106. S. P. 35 N. Hamp., 
132. 

And Chief Justice Marshall, in The Mary, 9 Cranch, 126, 
142, well says: ''By the rules of the court the condemna- 
tion of the vessel was inevitable ; not because, in fact, she 
was British property^ but because the fact was charged, and 
was not repelled by the owner, he having failed to appear 
and put in his claim." See 35 N. Hamp., 132. 

From this consideration of the authorities it is manifest 
that the form and mode of all the j)roceedings are perfectly 
legal and valid. 

For where no party appearn, and all are in default and 
contumacy, there is no fact to be tried ; the libel is taken 
for confessed, and judgment rendered as though the party 
had appeared and confessed all the facts charged in the 
same. 

A default is an admission of the facts stated in tlie com- 
plaint or indictment. 12 Minn., 221 ; The State v. Rich- 
mond, Fost., 24*7. 



69 

So, where a bill is taken ^jro con/esao, the party is as much 
bound as if he had appeared in open court and filed an answer 
admitting the truth of the allegations of the bill throughout. 
4 Oilman R., 511, 517; 11 Alab., 668; Sinclair v. Wil- 
liams, 8 Iredell's Eq. R., 335, 336; Attorney General i/-. 
Carver, 12 Iredell, 231. 

No jury is necessary on a default. 25 III., 178. 

For that which is confessed or admitted needs lo trial to 
prove, as the fact is as certainly established by confession or 
admission as though (he same were found to be true by the 
verdict of a jury. 

There can be no trial by jury, then, where the case is suf- 
fered to go by default. 

And that such is the law is further evinced from the fact 
that if a right of trial by jury is not demanded by the party 
who is entitled to the same, it is considered as waived. 4 
Wheat., 243, 244; 12 How . 460; 8 Indiana, 217. 218; 1 
Pet., 566. 

But when it is recollected that the confiscation proceeds 
on the ground that it is "enemies' property," there can be 
no earthly doubt as to the validity and sufficiency of the 
proceedings. 

The title to property captured on land has always been 
considered as complete by the fact of capture and a firm pos- 
session. In England the court of admiralty had no jurisdic- 
tion with respect to booty — property captured on land by 
land forces exclusively — until the passage of the 3 and 4 
Vict., c. 65, which enacts that the court "shall have juris- 
diction to decide all matters and questions concerning booty 
of war, or the distribution thereof. "" * * * -'The court 
shall proceed as in cases of prize of war, and the judgment 
of the court shall be binding upon all parties concerned." 
B anda andKirwee Booty, 1 Law (Adm.) R., 109. 



70 

And not only is it customary and usual for the military 
to take and use personally without any condemnation what- 
ever in a court of justice, but they also take and use houses 
and lands, and levy contributions at will upon all the inhab- 
itants of the enemy country for the support of the army. 

Congress mighty therefore, under the war power of suj)- 
pressing insurrection, have made provision, without the 
intervention of any court, for the army taking and confiscat- 
ing the whole enemy country for the support of the army, as 
well as to indemnify the expanses of the war. 

But the Government, not wishing that tlie loyal should 
sufier with the disloyal, made provision in the act for con- 
fiscating only the property of those whom it put upon the 
footing of enemies. Hence the necessity of judicial proceed- 
ings to ascertain the fact of the property seized belonging to 
a person named in the act. 

And but for this benign and humane modification of the 
belligerent right of confiscation, there would have been no 
occasion whatever for courts to condem the property seized, 
except for the purpose, perhaps, of making it more available 
for the support of the army and~the reimbursement of the 
expenses of the war. 

Congress, therefore, being under no obligation whatever 
to provide a remedy in its courts respecting the confiscation 
of property of the enemy, was at perfect liberty to prescribe 
its own terms when it saw fit to give one. 18 How., 284 ; 
12 ib., 460; 5 ib., 460. 

In 7 Cranch it is said: "In the case of Smith vs. The 
State of Maryland, (6 Cranch, 286,) this court sustained a 
specific confiscation of lands under a law of the State where 
there was neither conviction nor inquest of office." 

Chancellor Kent, (1 Com., 112, 10th cd.,) in speaking of 
the necessity of the condemnation, even of prize, says : ''As 



71 

between the belligerent ])arties, the title passes and is vested 
when the capture is complete." " The C[uestion " (that ot" 
title) " never arises but between the original owner and a 
neutral purchasing tVoni the captor, and between the orig- 
inal owner and a re-captor." 

And this same eminent authority, at page 113, has also 
said : "A judicial inquiry must pass upon the case, and the 
present enlightened practice of commercial nations has sub- 
jected all such captures to the scrutiny of judicial tribunals, 
as the only sure way to furnish due proof that the seizure 
was lawful. The property is not changed in favor of a 
neutral vendee, or re-captor, so as to bar the original owner, 
until sentence of condemnation has been pronounced by some 
court of competent jurisdiction^ belonging to the sovereign 
of the captor ; and the purchaser must be able to show doc- 
umentary evidence of the fact to support his title." 

From this exposition of the law it is clear that there is a 
great distinction between what is called military and civil 
rights. Military rights are evinced alone by possession ; 
and so long as military jDossession exists, so long does that 
jiossession furnish conclusive evidence, to all the world, of 
title. But when the title is changed by sale or other dispo- 
sition, then the title of the purchaser becomes a civil title, 
as contradistinguished from the military title, because the 
latter arises out of a state of war and possession merely, 
whereas, in the former, the title arises out of contract, dona- 
tion or grant, and is therefore purely civil. Possession 
alone, then, is conclusive evidence of the military right, and 
neutrals are bound to take the fact of possession for tlie law. 
But as to civil rights, a decree of condemnation can alone 
furnish record evidence to neutrals of the right of property. 
By the decree of condemnation, the military right is con- 
verted into a civil risrht. 



72 

So fur, then, as respects the right of the captor, there is 
no necessity whatever for any judicial proceedings. His 
right and title, so long as he retains possession, is as com- 
plete without as with a judicial condemnation. Indeel, the 
latter is wholly incompatible witli the military right. For 
the latter ceases on a decree of condemnation and becomes 
merged into a civil right. And all condemnations of vessels 
and other personalty take place in the country of the captor 
by proceedings in rem, and the mode and manner pointed 
out by the laws of the country of the captor. It is, therefore, 
seen that, strictly speaking, there is no necessity whatever 
for any condemnation of captured property so long as the 
property remains in the country or possession of the captor. 
The title of the captor is as complete without as with a decree 
of condemnation, for neutrals are bound to see right wherever 
they see the possesion of the captor. Even lands which 
have been sold, or those in the possession of the conqueror 
at the conclusion of peace, and in respect to which the treaty 
of 1 eace is silent, remain and belong to the conqueror with- 
out any condemnation whatever in a court of justice. 

Mr. Wheaton, in reference to this position, has said: 
"The proprietory right cannot be transferred by the con- 
queror to a third party, so as tj entitle him to claim against 
the former owner, on the restoration of the original sover- 
eign." "But since the Jus postliminii does not, strictly 
speaking, operate after the peace, if the treaty of jieace con- 
tains no express stipulation respecting captured property, it 
remains in the condition in which the treaty finds it, and is 
thus tacitly ceded to the actual possessor." " 'Il\\e jus post- 
Uminil is a right which belongs exclusively to a state of war ; 
and, therefore, a transfer to a neutral, before the peace, even 
without a judicial sentence of c )ndemnation, is valid, if there 
has been no recovery or recapture before the peace." " The 



intervention of peace covers all defects of title, and vests a 
lawfnl possession in the nentral, in the same manner as it 
quiets the title of the hostile captor himself." Wheat. Int. 
L., (Law. ed.,) 884. See 6 Rob. Adm. R. 43 ; ib., 138. 

It is only when the property of a neutral is captured that 
there is any real necessity for a condemnation ; and this ne- 
cessity arises from the fact that '' the property in a neutral 
captured as an enemy is never changed until sentence of con- 
demnation is passed." 4 Cranch R., 295, 

Such, then, being the distinction between military and civil 
rights, it is clear that there was no occasion whatever, so 
far as the military right is concerned, for sny legislation on 
the part of Congress respecting the property of rebels and 
traitors. 

But in order to make the same more available, it was neces- 
sary to have proceedings instituted against the same through 
courts of justice, as is provided in the act of 1862, so that 
every claim against the same must cease, (Bynkershoek, 39 
Dup. Tr.,) and the decree for all time furnish record evi- 
dence of the title of the purchaser, as it had been held by the 
Supreme Court in the case of the United States v. Brown, 8 
Cranch, that the courts could not condemn the property of 
an enemy, as such, without an act confiscating the same. 

But the right to confiscate is in no way or manner af- 
fected by the necessity of legislation in order to perfect a 
right derived from war. In other words, the municipal regu- 
lations as to modes of procedure are not inconsistent with 
the war right, as has been supposed. The right to confis- 
cate is a war right recognized by the law of nations, but the 
mode of enforcing and establishing the same through courts 
of justice is necessarily of municipal regulation. 

In Hudson et al. v. Guestier, 4 Cranch R., 297, Chief Jus- 
tice Marshall has well said : " Possession of the res bv the 



74 

sovereign has been considered a.s giving jurisdiction to his 
court : the particular mode of introducing the subject into 
the court, or, in other words, of instituting tlie particular 
process which is preliminary to the sentence, is properly of 
municipal regulation, uncontrolled hy the law of nations, 
and, therefore, is not examinable by a foreign tribunal. It 
would seem, then, that the principles wliich have been stated 
as applicable in this respect to a piize of war, may be ap- 
plied to a vessel rightfully seized for violating the munici- 
pal laws of a nation." See 3 Binn., 257, 250. 

And not only istlie mode of proceeding for the condem- 
nation of prize of municij)al regulation, but the municipal 
law may and does more or less furnish the rule of decision 
for thee lurts. For, as has been truly said, ''although the 
theory of public law treats prize tribunals, established by 
and sitting in tlie belligerent country, exactly as if they 
were established by and sitting in the neutral country, and as 
if the}' always adjudicated conformably to the international 
laAv common to both, yet it is well known that^ in practice, 
such tribunals do take for their guide the prize ordinances and 
instructions issued by the bclTigerant sovereign, without 
stopping to inquire whether they are C;msistent with the 
paramount rule." Wheat. ^ Int. L., (Law ed.,) 681. And 
a decree of condemnation so made operates a complete dives- 
titure of property and concludes the whole world, as the 
court rendering the decree had complete jurisdiction of the 
property. But if justice is not done in such case agreeably 
to what is called the law of nations, the original neutral 
owner may apply to his sovereign for redress, and it then 
becomes a question between the two nations to adjust and 
settle. And the reason of this is, because the court of the 
captor never had any jurisdiction over the thing or the per- 
son of the owner with his consent, but, on the contrary, the 



75 

jurisdiction was acquired by force on the ocean, which is 
common to all, and therefore not subject to any particular 
jurisdiction. And if this be the law in respect to neutrals, 
with what show of plausibility can it be said that a seizure 
and condemnation under the act in controversy would be 
illegal ? 

The mode of proceeding, according to the law of nations, 
could not be objected to even by a neutral, much less by an 
enemy ; and the condemnation would certainly be as conclu- 
sive upon the enemy owner as it would upon a neutral. And 
if any injustice should be done by the decree, the enemy 
owner would be without remedy, save that of reprisal and 
war, in which he was engaged. And the Government, token 
under no obligation to give a trial, may prescribe its oivn terms 
when one is granted. 18 Hov/., 284 ; 12 ib., 460 ; 5 ib., 460. 

Even at Common Law there is a right to take and destroy 
property of any description, in case of necessity, for self- 
protection, without any trial whatever. See 1 Dall. R. , 
45Y; 2 Denio'sR., 474. 

The act in question makes it the duty of the President to 
seize and use all the available property of the rebels for the 
support of the army. As to this, no one surely can say that 
it is illegal to take and use the same without a trial. Such 
a proposition would be as idle and absurd as to claim a right 
of trial by jury before going into battle, in order to obtain 
the verdict of jury as to who of the enemy might be put to 
death. And the principle that wai rants the taking and use 
of one species of property for the support of the army with- 
out any trial at all will warrant the taking of any other or 
all species of property for the like purpose. It is a matter 
dependent entirely on the discretion of Congress and the 
President, as the commander-in-chief of the army and navy. 



76 

Nor can the discietioiiary powers of the President and Con- 
gress be questioned. 7 How,, 1 : 4 Wlieat., 316. 

For it is competent for the legislative department (in 
which the wliole war power resides) to provide for tlie modes 
of proceding in and out of the courts of the nation, to enforce 
and render available its war rights as against the enemy. 

By a condemnation of iiroperty in the mode required, all 
claims to the same must cease, and a full and complete 
title vest in the purchaser. Even as regards neutrals, as we 
have seen, property thus condemned in the courts of a bel- 
ligerent is divested of every claim, and if the decision be 
unjust, the claimant must look alone to his sovereign for re- 
dress. 

Upon what principle, then, can an enemy object to the 
mode of proceedings required by the act in the national 
courts? As an enemy, he has no right to be heard in court. 
Courts are constituted alone for citizens and friends ; into 
their sacred precincts an enemy may not enter to claim 
rights as against the Government he is seeking to destroy, 
except upon such terms as the Government itself may 
choose to prescribe .For, as has been well and forcibly said 
by Mr. Justice Johnson, (12 Wheat., 528,) " 7Far is a suit 
prosecuted hy the sivord." 

All the objections, tlien, wliich have been raised, both in 
and out of court, as to the validity of the act, are as 
visionary as delusive, and as unsubstantial as the vision of 
^neas^ when bemoaning his lost Creusa amid the crumbling 
ruins and burning strec'ts of fallen Troy. 

"Ter conatus ibi colo dare brachiii circnin ; 
Ter frustra comprensa manus effu<2;it imago, 
Par levibus ventis volncrique siinillima somno." 

" And thrice about lier neck my arms I flung, 
And tlirice deceived on vain embraces hung. 
Light as an empty dream at break of day, 
Or as a blast of wind she rushed awav." 



77 



JOINT RESOLUTION. 

IX. Confiscation of enemies' property is not limited to a mere 
life hy the joint resolution. 

It i.s true the Supreme Court of the United States, in the 
case of Bigehnv v. Forrest, 9 Wal., 339, has held that only a 
life estate was confiscable under the act of 1862. But that was 
a case of first impression in that court, and seems to have 
been founded on a misapprehension of the true mode of ap- 
plying the law to the facts of the case. 

The joint resolution only applies to punishments and pro- 
ceedings against offenders, and does not extend to enemies 
and limit the confiscation of enemies' property to a mere 
life estate. 

The Confiscation Act, as it is called, is an exercise of both 
sovereign authority and the belligerent right of confiscating 
enemy property on land during a state of war. 

The first two sections of the statute relate to the punish- 
ment of treason and rebellion. This is an exercise of sov- 
ereign authority, and constitutes alone the criminal portion 
of the act. The other provisions of the act providing for the 
seizure and condemnation of the property seized, '^as ene- 
mies' property," is but an exercise of the belligerent right 
of confiscating enemy property in time of war. 

These different provisions of the act are, therefore, to be 
taken and regarded as separate and distinct from each other. 
The one relates to citizens and proceedings in time of peace. 
The other relates to enemies and proceedings in time of war. 
They are, therefore different from each other in every essen- 
tial paiticular. And they also differ from each other as to 
the mode of procedure and the rules of law which apply to 
an 1 govern the same. A resolution or provision of law, 
therefore, which only embraces the one cannot be said to 



78 

extend to and include the other. And this being so, it 
seems to us that the joint resolution (12 U. S. Stat., 62V) 
which says, '' nor shall any punishment or proceedings 
under the act be so construed as to work a forfeiture of the 
real estate of the offender beyond liis natural life," only 
applies to punishments and proceedings against offenders 
under the criminal portion of the act, and does not extend 
to or limit the confiscation of property under the other pro- 
visions of the statute, as enemies' property, to a mere life 

estate. 

And this is most manifest from the history of the resolu- 
tion, as well as from the well-known meaning of the terms 
used in the same. 

The history anl oijectuf tlij resolution, in short, s this : 
The President (Mr. Lincoln) thoug'it that Congress, accord- 
ing to his view of the Constitution, could only forfeit the 
real estate of a party for treason for and during the terra of 
his life. 

And he was further of opinion tliat if a fine was imposed, 
as i^art of tlie punishment for treason, as prescribed in the 
first section of the act, the real estate of the party might be 
seized and sold in fee to pay and satisfy the fine, and that 
that, therefore, would, in ."-ubstance, be doing indirectly 
whit could not be done directly. 

In other ^vords, he thought tliat as Congress could not, 
in his view, forfeit the real estate of a i»arty in fee for trea- 
son, it could not reach the same result by means of a fine 
and a sale of the real estate in fee to pay and satisfy a fine im- 
})osed as a part of the punishment for treason. 

And to obviate this objection of the President to the bill 
was the sole and only object of the amendment to the joint 
resolution, as its words clearly import and its history fully 
shows. 



79 

The joint resolution explanatory of "An act to suppress 
insurrection^ to punisli treason and rebellion, to seize and 
confiscate the property of rebels, and for other purposes," 
as it originally passed the House of Kepresentatives, reads 
as tbllows : •' That the provisions of the third clause of the 
fifth section of said act shall be so construed as not to apply 
to any acts done prior to its passage, nor to include any 
member of a State Legislature or judge of any State court 
who lias not, in accepting or entering upon his office, taken 
an oath to support the Constitution of the so-called Confede- 
rate States of America." Cong. Globe, Part IV, 2d Sess. 
37th Congress^ pages 3373-4. Upon this resolution being 
called up in the Senate, Mr. Clarke moved to amend the 
same by adding : "Nor shall any punishment or proceed- 
ings under said act be so construed as to work a forfeiture 
of the real estate of the offender beyond his natural life." 
lb. 3374. 

The object of this amendment will be best understood 
by giving the exact words of the mover, Mr. Clarke, on the 
floor of the Senate, and which are as follows : "I present 
the amendment to meet what I believe to be the objection 
of the President. That is it exactly." lb. 3380. 

To this Mr. Trumbull at once replied, "what he believes 
to be the wishes of the Executive ; and he never would 
have tliought of presenting the amendment for any other 
reason Then we are voting to meet the views of the Ex- 
ecutive, and for no other reason whatever." lb. 

Here, then, we Jiave the key to the motive of the amend- 
ment ; and that in the language of the mover was "to 
meet what I believe to be the objection of the President." 
Now what was " the objection of the President " to the bill 
which it was jn-oposed to meet by the passage of this amend- 
ment to the joint resolution ? 



80 

The sole objection of" the President to the bill as stated 
by Senators Harris, King, Trumbull, and Howard, {and to 
xvhose statements no one dissented,) was, that Congress, ac- 
cording to his view, could not constitutionally confiscate 
real estate ior treason, beyond the life of the traitor. Here, 
then, we have the constitutional ])rovisi()n about atta'nder 
of treason as the sole and only ground of objection to the 
bill. 

Senator Harris, after stating that this question had been 
one of the subjects of discussion, and upon which there had 
been a difference of opinion, and that he had shown on a 
former occasion, at least to his own satisfaction, that the 
property of rebels might be confiscated in fee for treason, 
stated what he understood to be the President's opinion, as 
follows: ''He is of opinion that the real estate of rebels 
cannot, for treason, be confiscated beyond the term of their 
lives ; and if the bill now before the President is allowed to 
stand as it is, it will be vetoed — we may as well understand 
it — and solely upon that ground. It is a bill that contains 
other and very valuable and important p;-'ivisions." lb., 
3378. 

And it was stated by Senutor 'Trumbull, (near the c^ose of 
the debate on tlie I'csolutioii,) and conceded by Senator 
Clarke, the author of the amendment, that the first sec- 
tion of the bill was the only niic tliat liad any I'eference to 
treason. 

i\[r. Trumbull, on ihat occasion, said: ''This bill, how- 
ever^ as I understand it, does not provide for trying men for 
treason and forfeiting their property on their conviction for 
treason. There is no such principle in the bill. It does not 
change the punishment for treason, and it contains, if I re- 
collect rightly, a provision in the first section authorizing 
the as.sessment of a fine. I believe that is retained " 



81 

Mr. Clarke. — ^That is retained. 

Mr. Trumbull. — And that fine could be levied, I suppose, 
upon the real estate, and the real estate sold under that fine? 

Mr. Clarke. — The bill so says. 

Mr. Trumbull. — I would have preferred that that should 
have been out of the bill ; but there is not in the whole bill, 
as I understand it — and I wish not to misunderstand it — 
any other clause, excepting that first section, forfeiting 
the real estate of a man who is tried for treason. Am I 
not right ? 

Mr. Clarke.— That is right. 

Mr. Trumbull. — Then why talk about this bill forfeiting 
the real estate beyond the life of the traitor? It is not in 
the bill, except it is in that first clause, that you shall get 
at the real estate by means of a fine. * * * As I under- 
stand it, there is not now in the bill any provision for for- 
feiting the property of a traitor beyond his life, or for any 
time, except as it will grow out of that first section. The 
other provisions of the bill for seizing property relate to 
property that is captured by the army where the person of 
its owner is not subjected to trial for treason or any other 
offences. lb., 3380-1. 

It is, therefore, seen that the President's objections to the 
bill grew out of the constitutional provision in reference to 
attainder of treason. But it is also clear that the provision 
of the first section of the act in reference to a fine which 
might be imposed on the conviction of a party for treason 
was the only part of the bill to which this provision of the 
Constitution could, by any possibility, have any application. 
For it was stated and conceded in debate in Congress (and 
the bill itself shows) that the real estate of one convicted of 
treason might be sold to pay and satisfy a fine imposed as a 
part of the punishment of treason. 



82 

It was tliis provision, and this provision alone, in regaid 
to the imposition of a fine by the court under the first section 
of the at, as a part of the punishment of treason, and a 
fl le in fee of leal estate to satisfy that fine, which gave rise 
to the doubt in the mind of the Pi-esident as to the constitu- 
tionality of the bill. 

And it is also clear, that the only object of tlie amendment 
to the resolution was to obviate this sole constitutional 
objection of the President in reference to the operation and 
effect of a fine imposed under the first section of the act as a 
part of the punishment of treason. 

And this being well understood and fully established, the 
object and extent of the amendment to the joint resolution 
is of easy solution, (even if there was any doubt as to the 
meaning of the same from the words used), as the history of 
legislation, the cause or necessity of making the act, or 
foreign circumstances, may be looked into for the purpose of 
ascertaining the intention of the Legislature in making the 
act, and which, when ascertained, must be respected and 
obeyed. 1 Wlieat., 115 ; 4 Gill and J., 152, 153. 

In Maynard vs. Johnson, 2 Nevada R , 25, it is held that 
in cases of doubtful construction, or where an act will admit 
of different constructions, the debates of a legislative body 
may be resorted to to determine the meaning of a law, where 
tlie language of the same is so ambiguous as not clearly to 
show the meaning intended to be conveyed. 

At page 20, of the above case, Mr. Justice Bronson says : 
'' In cases of doubt, and also where a statute will bear oppo- 
site meanings, either from inaptness of phraseology or an 
ungrammatical construction of its several clauses, it is very 
usual to resort to the discussions of the legislators on the 
disj)uted point, witli a view to the ascertainment of their 



83 

intention. This is authorized and legitimate, both in the 
interpretation of statutes and constitutions." 

And in Canal Company vs. Railroad Company, 4 Gill 
and John. R., 153, the court says : "'In Preston vs. Brow- 
den, 1 Wheat., 115, the Supreme Court of the United 
States, in construing an act of Assembly of North Carolina, 
had recourse to the history and situation of the State, and 
treaties made by that State with the Indians, in order to 
ascertain the intention of the Legislature, and thereby to 
arrive at the meaning of the act, and decided that it did 
not embrace the land in question, though the words of it 
were sufficiently broad and extensive, on the ground that 
it did not apriear to liave been the intention of the Legis- 
lature." 

From this consideration of the history of the resolution 
and the law applicable to the same, it is very evident that 
the joint resolution cannot be held to embrace the confisca- 
tions specified in the statute, because such was not the in- 
tention of Congress in passing the resolution. 

And not only is it clear from the history of the resolu- 
tion that it was not intended to embrace and apply to con- 
fiscations '• as enemies' property," but even the very words 
of the resolution itself show that it was only intended, and 
can only apply, to jj 3 rsonal and crbalnal proceedings under 
the first and second sections of the act. The words are : 
'' Nor shall any punishment or proceedings under the act be 
so construed as to work a forfeiture of the real estate of the 
offender beyond his natural life." It is, therefore, seen that 
the resolution, in express terms, refers only to offenders un- 
der the penal portions of the statute, the first and second 
sections being the only parts of the act under which it is 
possible for any one to be considered an offender, or under 
whicli any personal or criminal proceedings could be had. 



84 

The provisions of the fifth, sixth, seventh, and eighth 
sections of the statute relate to persons as enemies, and not 
to offenders. It is, therefore, not to he extended in its opera- 
tion heyond offenders under the first and second sections of 
tlie act, so as to include those who are put, hy the other pro- 
visions of the statute, on the footing of enemies. The word 
offender, ex vi termini, means one who has violated some 
positive provision of law, and who is amenahle to pers mal 
punishment, in some form or other, for his violation of the 
law. Enemies, as such, (and all the inhahitants of the se- 
ceded States, so fixr as belligerent rights were concerned, 
have been uniformly held by the Supreme Court of the Uni- 
ted States as enemies, irrespective of their personal senti- 
ments and dispositions,) are not and cannot be considered 
as offenders. Offenders are such, under and by virtue of 
the municipal or statutory law of the land. Enemies, or 
those who are put upon the footing of enemies, so far as bel- 
ligerent rights are concerned, are not amenable, as such, to 
tlie municipal law relating to offenders, but are alone liable 
to be dealt with according to the law of nations and the 
rights which war confers. A citizen may be regarded, so 
far as belligerent rights are concerned, as an enemy, and 
yet not be an offender. The Rapid. 8 Oranch, 155 ; Jecker 
V. Montgomery, 18 How., 114. 

In the first of these cases the property of a loyal citizen 
was condemned as forfeited to the Government, not because 
the owner was disloyal and an offender, so as to be amen- 
able to personal punishment, but because his conduct in 
sending a vessel to the enemy's country to bring away his 
property was intercourse inconsistent witli loyalty, and he 
was, therefore, so far as his property was concerned, to be 
deemed and taken as an enemy. And so in the case referred 
to in IS lluw., ]»roperty taken trading with the enemy was 



85 

held liable to be condemned as prize of war, because the 
owner, pro hac vice, was to be considered and regarded as 
an enemy, though not an offender in the proper sense of 
that term. 

And, 0:1 the other hand_, a citizen may be, and often is, an 
offender without b.nng an enemy. 

When, therefore, we find the word offender used in a 
statute, as in the joint resolution, it is very clear that it 
does not include, and was not intended to embrace, any one 
in liis position or relation as an enemy. An offender in law 
occupies a very different and distinct position from that of 
an enemy. Offenders are amenable alone to, and are pun- 
ishable by virtue of the municipal law. Enemies, (or those 
the law deems such,) on the other hand, can only be dealt 
with according to the law of nations and the rules which 
govern in civilized warfare. 

It is said, however, in substance, that a citizen engaged 
in rebellion is not to be considered as an enemy — that he 
may be regarded as a traitor, but not as an enemy. This 
is a great mistake. A citizen may at one and the same 
time be both an enemy and a traitor — an enemy to be dealt 
with as such whilst the war lasts, and a traitor, to be pun- 
ished as sucli only when the rebellion is suppressed and 
the war at an end. In the language of the Supreme Court 
of the United States, in the Prize Cases, 2 Black, G74, 
" they are none the less enemies because they are traitors." 
But though they are both enemies and traitors, they are 
not to be dealt with in both capacities at one and the same 
time — enemies, whilst the war lasts, and traitors, to be 
punished as offenders when the rebellion is suppressed. 
Such being the law, it is but fair and reasonable to presume 
that Congress in passing the act of July 17, 1862, to sup- 
press insurrection, to punish treason and rebellion, to seize 



86 

and confiscate the property of rebels, and for other purposes, 
was well aware of the double position in which those in re- 
bellion had placed themselves, and of its rights to deal with 
tlicni in one or both of the positions and capacities in which 
they had placed themselves — that ol" enemies and traitors. 
And hence we find that Congress, in the act referred to, 
made provision as a means of su])pressing insurrection for 
dealing with those in rebellion both as traitors and enemies. 
For it is for the political department of the Government to 
fix or determine the status of parties. The provisions of 
the act, therefore, relating to the different capacities and 
positions in which those in rebellion had placed themselves, 
and in which they were liable to be dealt with, are to be re- 
garded and considered as separate and distinct from each 
other, as though they were embodied in separate and dis- 
tinct acts. And this is evident from tlie fact that the crimi- 
nal portion of the statute could only be enforced after the 
termination of the war, whilst that relating to the confis- 
cation of enemies' property could only be enforced during 
the existence of the war. And tliis being well understood 
and established, it is very evident -that when Congress passed 
the joint resolution relating alone to offenders, it did not 
intend that it should extend to or embrace enemies, and the 
proceedings against them as such, because an enemy cannot 
be regarded in the eye of the law as an offender. Enemies 
can only be dealt with as such, and not as offenders. A 
statute, therefore, which refers to offenders only as the reso- 
lution does, cannot be said to extend to and include enemies, 
or the rights of the Government against them as such, as pro- 
vided and set forth in the confiscation portion of the act. And 
not only docs the use of the word "offender" in the resolution 
show that it was only intended to apply to and embrace jier- 
sonal and criminal prosecutions under the first and second sec- 



87 

tions of tlie act, and the consequence which might attach and 
follow iVom tlie same, but the other words of the resolution 
clearly and unmistakably show that it was only intended by 
the resolution to tie up and make the act. as far as the pun- 
ishment for treason and rebellion was concerned, square 
with the then President's views of confiscating only a life es- 
tate for treason. For it says : " Nor shall any punishment or 
proceedings under tlie act l)e so construed as to work a forfeit- 
ure of the real estate of tlie offender beyond his natural life." 

Now, does not this language show, beyond all doubt, that 
the resolution only refers, and was only intended to refer, to 
the punishment of treason and rebellion and the proceed- 
ings incident to the same ? Most clearly^ it does. The 
'' punishment and proceedings" referred to can only relate 
to those personal jiunishments and proceedings under and 
by virtue of the provisions of the first and second sections 
of the statute, they being the only sections of the act under 
which any proceedings against the person of an offender 
could be had, or under which any one could be considered 
an offender. If the resolution was intended to apply to all 
proceedings under the act, why was the word offender used 
in the same ? The word offender was used to fix the limit 
of the o})eration of the resolution ; it was to apply alone to 
those punishments and proceedings wliich were against 
offenders. 

Besides, to work a forfeiture, according to all the authori- 
ties, as we have seen above, is to bring about or produce as 
a resulting conse([uence from some prior act or thing. 

The resolution, then, like the clause in the Constitution, 
only provides and guards against mere resulting consequences, 
or consequences wliich it Avas supposed would follow, as a 
matter of course, from punishments and proceedings against 
offenders under the criminal part of the act. 



88 

For Congress miglit well, ia order to obviate the coiisti- 
tutional objection of the President us to the punishment of 
treason, limit the sale, by the resolution, of the real estate 
of the qffendey^, to pay and satisfy a fine imposed as a part of 
the punishment of treason to a life estate, without at all 
modifying the other provisions of the act, confiscating ene- 
mies' property absolutely. The motive or occasion for the 
modification in the one case, would certainly l)e entirely 
wanting as to the other. 

It would, therefore, seem to be almost a self evident prop- 
osition that the joint resolution can only refer, and was 
only intended to refer to punishments and proceedings 
under the first and second sections of the statute, and does 
not embrace, and was not intended to embrace,, confiscations 
of enemies' property under the other provisions of the act. 
And this would seem to derive great force and strength from 
the fact, as shown by the act itself, viz : that the object of 
seizing and condemning the ])roperty seized ''as enemies' 
property," was to secure the speedy termination of the re- 
bellion and the support of the army. These being the 
objects of the confiscation of the enemy's property, is it not 
evident that the mere confi.-cation of the life estate only of 
one liable to be killed in battle the next moment after the 
confiscation of liis property would be next to idle and use- 
less? Who would purchase such a precarious interest dur- 
ing a state of war? And what revenue for the support of 
the army could have been expected from the sale of a mere 
life estate in the property seized and condemned as enemies' 
property? None; actually none. Besides, if only a life 
estate was confiscable, to whom would the })roperty go on 
the termination of the life estate during the war ? Would 
it not descend to the heir of the enemy ancestor, and thus 
again become one of the sinews of war in the hands of the 



89 

enemy? And would it not have to be condemned over and 
over again to make it available for the support of the army ? 
A construction tliat would lead to such a result and thereby 
defeat two of the main purposes of the act — the suppression 
of the rebellion and the support of the army — cannot be a 
sound and correct interpretation of the resolution. 

Seizure and condemnation of the property seized, '^as 
enemies' property," was to, and could only, take place dur- 
ing the war. But the proceedings and punishment for trea- 
son could only take place and be inflicted after the suppres- 
sion of the rebellion and the close of the war. For if, as 
is said in the books, the sovereign who was endeavoring to 
reduce his revolted subjects to obedience should hang for 
treason pending the contest, the insurgents would hang 
also, by way of retaliation, those of the established govern- 
ment who should fall into their hands, and thus the war 
would become one beyond the pale of civilized warfare. 

Hence, civil wars, for the sake of humanity, are governed 
by the same rules which obtain in wars between independ- 
ent nations, the parties on either side, during the contest, 
being regarded and dealt with as enemies and not as offend- 
ers. The policy, then, of forfeiting only the life estate in 
tlie property of traitors and offenders after the suppression 
of the rebellion and the close of the war can have no sort of 
application Avhatever to the confiscation of enemies' property 
during the existence of a state of war. The confiscation, 
then, of enemies' property is a very diff'erent and distinct 
thing from that of punishing offenders. A law relating 
exclusively to the latter cannot then be said to extend to 
and embrace the former. 

The right to confiscate enemies' property is a belligerent 
right, political in its nature, and entirely under the power 
and authority of Congress, and is wholly unfettered by the 



90 

[)rovi,sions of the Constitution relating to the pnnislnneiit ol' 
treason and offenders. 30 Indiana R., 5. 

Sucli being tlie law, it seems to us that that part of tlie 
act of July 17, 1862, relating to the contiscation of '•'ene- 
mies' property,' must be held to be separate and distinct 
from that portion of the act relating to offenders, and that 
the resolution relates alone to the punishment and proceed- 
ings against offenders, and does not ap}dy or extend to those 
parts of tlie statute providing for the seizure and confisca- 
tion of enemies' property. And as the main purpose of 
the confiscation portion of the act was the speedy termina- 
tion of the rebellion, as well as the sup^iort of the army, it 
seems to us that by no fair and reasonable mode of interpre- 
tation of the words used in the resolution, can it be held to 
extend to and limit the confiscation of enemies" property to 
a mere life estate. To do so would be to extend the resolu- 
tion, as shown by its liistory, beyond the intention of Con- 
gress in passing the same. To do so would be to give an 
extent and meaning to the resolution fiir beyond its import, 
and which is not warranted by its words. And, finally, to 
do so would, if the war was still pending, (and the act and 
the resolution should be construed together as though the 
war was still in existence,) be to defeat two of the main pur- 
poses of the act, the suppression of the rebellion and the 
support of the army. A construction that would lead to 
such results, it seems to us, cannot be regarded as a sound 
or proper construction of the statute, and the resolution 
passed in connection with the same. 

And this is further manifest from the fact that the act and 
the resolution Avere both signed on the same day of the same 
session of Congress, and the further fact that the resolution 
contains no express words of repeal or modification Avhat- 
ever, of any provision of the statute. It can, therefore, only 



91 

operate as a repeal or modification of the act by implication, 
to the extent, and to the extent only, to whicli they are repug- 
nant and tvhoU/j {irreconcilable hy any fair and reasonable 
mode of interpretation. 

But before one act of Congress will operate a repeal or 
modification of another, passed even at a different session of 
Congress, by implication, it must appear that there is a 
positive and irreconcilable repugnancy between tlie two. 

A repeal by implication is not favored in any case by the 
courts. Tlie two acts must be reconciled if possible. McCord 
V. Smith, 1 Black., 459 ; Nay lor y. Field, 5 Butcher's (N. J.) 
R., 287 ; State v. Berry, 12 Iowa (4 Whith.) R., 58; 10 
Ohio (N. S.) R., 25 ; 1 Head's (Tenn.) R., 113 : 3 Wallace, 
633; 22 How., 311 ; 25 Ind., 166. 

'' That statutes may be repealed by implication and with- 
out any express words," (there can be no doubt,) " still the 
leaning of the courts is against the doctrine, if it be possible 
to reconcile the two acts of legislation together." Sedg. 
Stat, and Const. L., 12T. And the reason is, " laws are pre- 
sumed to be passed with deliberation, and with a full knowl- 
edge of all existing ones on the same subject ; and it is, 
therefore, but reasonable to conclude that the Legislature, 
in j^assing a statute, did not intend to interfere with or ab- 
rogate any prior law relating to the same matter, unless the 
repugnancy between the two is irreoncilable ; and hence a 
repeal by implication is not favored ; on the contrary, courts 
are bound to uphold the prior law if the two acts may well 
subsist together." lb. 

In Ind. School Dist. v. Whitehead, 2 Beasley's (N. J.) 
Ch. R., 291, Chancellor Green well says: ''But the repeal 
of a statute by implication is not favored. Unless the lat- 
ter statute is manifestly inconsistent with and repugnant to 
the former, both remain in force. Courts are bound to up- 



92 

hold the prior hiw it" the two may subsist together. Tlio 
matter must be so clearly repugnant that it necessarily im- 
plies a negative. Dwarris on Stat.^ 0^4 ; 1 Bl. Com,, 89, 
and cases cited, note 34, Sharswood's ed. ; Beales v. Hall, 4 
How. U. S., 37; Bowen v. Lease, 5 Hill, 221, and cases 
cited, note a, 225." 

In Ludlow's Heirs v. Johnson, 3 Ohio, 553, it is said: 
" When the provisions of two statutes are so far inconsistent 
with each other that botli cannot be enforced, the latter must 
prevail. But if hy any fair course of reasoning the tioo can 
he reconciled, both shall stand. * * * ^^ court loill, 
if it can consistently he avoided, determine that a statute is 
repealed hy implication.'' 

In Cass V. Dillion, 2 Ohio State, (Warden,) 610, the court 
thus states the law : "As repeals by implication are not fii- 
vored, the repugnancy between the provisions of two stat- 
utes must be clear, and so contrary to each other that they 
cannot be reconciled, in order to make the latter operate a 
repeal of the former. Tin's rule is the result of a long course 
of decisions. " 

And in McCool v. Smith, 1 Black, 470, 471, Mr. Justice 
Swayne well says : "A repeal by imjilication is not favored. 
The leaning of the courts is against the doctrine, if it be 
possible to reconcile the two acts of the Legislature to- 
gether. Sedg. Stat, and Const. Law, 127 ; 4Gill. and J., 1 ; 
Canal Co. v. Railroad Co., 5 Hill, 221 ; Bowen v. Lease, 2 
Barb. S. C. R., 31G, Williams v. Potter." 

"Statutes should be construed with a view to the original 
intent and meaning of the makers, and such construction 
should be put upon them as best to answer that intention 
which may be' collected from the cause or necessity of mak- 
ing the act, or from foreign circumstances ; and when dis- 
covered ought to be followed, although such construction 



93 

may seem to be contrary to the letter of the statute. Plow., 
205, 232; 11th Coke Rep., 73; 19th Vin. Abr.,519; 6th 
Bac. Abr., 384. That, therefore, Avhich is within tlie letter 
of a statute is sometimes not within the statute, not being 
within the intention of the makers. 'If laws and statutes 
seem contrary to one another, yet if by interpretation they 
may stand together, they shall stand ;' and where two laws 
only so far disagree or differ as that by any other construc- 
tion they may both stand together, the rule that leges poste- 
riores, pr lores contrarias ahrogant, does not apply, and the 
latter is no repeal of the former. Eoll. Eep., 90, 91 ; 2d 
Co. Rep., 5, 6; 11 Coke Rep., 63, 64; 19 Vin. Abr., 519, 
525. It is laid down as an esfablished rule, in 19 Vin. Abr., 
525, PI. 132, that ' repeals by implication are things disfa- 
vored by law, and never allowed of but when the inconsist- 
( ncy and repugnancy are plain and unavoidable ; for these 
repeals ctrry along with them a tacit reflection upon the 
legislators that they should ignorantly, and witliout knowing 
it, make one act repugnant to and inconsistent with another ; 
and such repeals have ever been interpreted so as to repeal 
as little of the preceding law as is possible ;' and in 6 Bac. 
Abr., 385, that 'where it is manifestly the intention of the 
Legislature that a subsequent act of Parliament shall not 
control the provisions of a former act, the subsequent act 
shall not have such operation, even though the words of it, 
taken strictly and grammatically, would repeal the former 
act.' These principles have been recognized and adopted 
by courts from the time of Roll, Plowden, and Coke to the 
present day.'' Canal Co. v. Railroad Co., 4 G. & J., 1. 
Nor is this rule to be departed from on any pretence or 
suggestion that the spirit of the resolution is more compre- 
hensive than its words import. For, as is well said by Mr 
Justice Thurman,inCass V. Dillon, 2 Ohio State, (Warden.) 



94 

612, •• wIkmi was an enlarged meaning given to a statute 
beyond the import of its words, in order to repeal another 
statute by implication ? We have met witli no such case, 
and none hns been pointed out to us." 

And this is more especially the case where the two acts 
(as in this case) Avere passed not only at the same session of 
Congress, but actually approved by the President on the same 
day. For, in the case of acts passed at the same session of 
the Legislature, it is well settled tliat the ordinary rules of 
construction employed to determine whether former laws 
have been repealed by the enactments of a subsequent Leg- 
islature, are inapplicalle, and the rule is (hat the ivhole must 
he taJcen as one act, and that nothing short of a direct, ex- 
press, repeal in terms, or such irreconcilable repugnancy as 
that both cannot stand together, and one consequently must 
give place to the other, and operate its repeal by implica- 
tion, has, it is believed, ever been held sufficient to justify 
a court in holding one act rej^ealed by another passed at the 
same session. Cain r.s\ Tlie State, 20 Texas R., 355, 3G5 ; 
Peyton r.v. Mosely, 3 Monroe's (Ky.) Pt., 80; Sedg., Stat, 
and Const. Law, 415: Neill vs. Reese, 5 Texas, 33; 2 
Blackf., 249. 

Tn Cain v. The State, 20 Texas, the (question was, whether 
or not an act of the Legislature, which authorized the county 
courts of the Sta'e to grant a license for the retail of intox- 
icating liquors in quantities less than a (juart, and imposing 
a license tax for such privilege, and prescribing a penalty 
for selling without such a license, was repealed by the pro- 
visions of the Penal Code of Procedure enacted at a subse- 
(|Uont period of the same session, and which contained a re- 
pealing clause, and after enumerating a great many crimi- 
nal laws of former sessions, concluded as follows : " And all 
other laws and parts of laws relating to crimes and punish- 



95 

ments are liereby repealed ;'" and the court, in an elaborate 
and well-considered op'nion, held that the former act of the 
same session (and which related to crimes) was not repealed 
even hy this broad and comprehensive language of the re- 
pealing clause, and that the C(,nviction of the defendants 
under the former act for a violation of its provisions was 
good. 

At pages 358-365, of tlie above authority, Mr. Justice 
Wheeler, after quoting the statute, well says : " The mate- 
rial question to be determined is, whether this act was re- 
pealed by acts of a later date, passed by the same Legisla- 

Tnvo 

"In considering the question^ it is important to observe, 
that both the act supposed to be repealed and the supposed 
repealing act are acts of the same Legislature. This, it is 
conceived, renders inapplicable the ordinary rules of con- 
struction employed to determine whether former laws have 
been repealed by the enactments of a subsequent Legislature. 
By attending to this distinction^ and applying the rule 
which governs the construction of acts passed at the same 
session, the question, wo. think, is free from difficulty. The 
rule is, that in the construction of acts of the same session, 
the whole must be taken and construed as one act, and to 
make a latter provision repeal a former, there must be an 
express repeal or an irreconcilable repugnancy between 
them ; and then the latter will control. (3 Moore, ^'1 ; 
Sedg. on Stat, and Const. Law^ 415.) The case of Peyton 
vs. Moseley, determined in the court of appeals of Kentucky _, 
is a stronger case, it is conceived, of the apparent repeal, 
by tlie Legislature, of a prior act, by one subsequently 
passed at the same session, thfu the legislation in question 
affords : and yet the court held there was no repeal. An 
act of the Legislatni-e prescribed the form of a recognizance 



96 

to be taken in certain cases, concluding with the words, 
'witness my hand and seal.' A subsequent act of the 
same session abolished the use of seals, putting sealed and 
unsealed instruments on the same footing. It was insisted 
that the latter act repealed the former. But the court said : 
''It is true, as observed by the court below, the expressions 
of this latter act are very broad, and if it had not passed at 
the same session with the forn:er, it might, by the ordinary 
rules of construction, be held to repeal the former pro fan/o- 
But with regard to acts passed at the same session, we 
apprehend that the rules of construction are somewhat dif- 
ferent. When they are compared together, they ought to 
bo construed as one act on the same subject ; and the pre- 
sumption of so sudden a change or revolution in the minds 
of tlic Legislature ought not to be indulged. There ought 
to be an express repeal, or an absolute inconsistency between 
the two provisions, to authorize a court to say that the latter 
had repealed the former. If both these provisions were in 
the same act, both must have effect, if possible. Hence, the 
conclusion would be, that the recognizance directed to be 
taken with a seal, in which the bail stipulated for the prin- 
cipal, ought to be held as an exception to the general pro- 
vision which dispensed witli a seal.' (3 Monroe, SO.) And 
thus the court, instead of holding acts, of the same session, 
apparently repugnant, the one to repeal the other, gave 
effect to both, although in order to do so it became necessary 
to engraft the former upon or incorporate it in the latter 
act as an exception to its jtrovisions."' 

''It is not to be supposed, nothing short of expressions so 
plain and positive as to force upon the mind an irresistible 
conviction, or absolute necessity, will justify a court in pre- 
suming that it was the intention of the Legislature that the 
acts passed at the same session should abrogate or annul one 



97 

another. The decent respect due a co-ordinate department 
of the Grovernment would seem to forbid that such a pre- 
sumption be indulged in by the court. As we had occasion 
to say in Neill vs. Keese, ' it would not be a reasonable mode 
of construing acts of the Legislature so to construe them as 
to make one act repeal another passed at the same session. 
It cannot be supposed that it was their intention that acts 
thus passed should abrogate and repeal one another.' 5 
Tex. R., 33. 

"If the minds of the Legislature had really undergone 
so sudden a revolution, it seems impossible to doubt that 
they would have made it known, and removed all occasion 
for controversy on the subject by a direct express repeal of 
the act in terms." 

" Nothing short of a direct express repeal in terms, or 
such irreconcilable repugnancy as that both cannot stand 
together, and one consequently must give place to the other 
and operate its repeal by implication, has, it is believed, 
ever been held sufficient to justify a court in holding one act 
repealed by another passed at the same session." 

"There must be a positive repugnancy between the pro- 
visions of the new laws and those of the old ; and even then 
the old law is repealed by implication only, j^ro tanto, to the 
extent of the repugnancy." Daviess v. Faribain, 3 How., 
646 ; Wood v. United States, 16 Pet., 362. 

Tested by the principles of the foregoing authorities, the 
resolution cannot be considered as a repeal or modification 
of the confiscations provided for in the act. The utmost 
that can possibly be claimed for it is a modification or limi- 
tation of the sale of the real estate of a convicted traitor, 
to pay and satisfy any fine imposed by the court as apart 
of ihe punishment for treason, to the term of the life of 
the traitor. This is the source of its origin and the 



98 

ultima Thule of its destination, and beyond tliis it can- 
not go. 

And with tliis consideration of the resolution ai.d 
the highest respect and regard for the opinion of the 
Supreme Court of the United States, in Bigelow v. Forrest, 
we venture to say that we entcrtian no doubt whatever but 
that when the »{uestion therein decided comes again before 
that learned court and is fully and fairly argued before the 
same, the decision will be that confiscations in fee underact 
ITth July, 1862, are legal and valid. 

But if it should be thought, or even conceded, for the sake 
of argument, that the resolution was a modification of the 
specific confiscations provided for in the act, and a conse- 
quent concession to the views of President Lincoln, that 
Congress could only forfeit a life esta'e for treason, then it 
may be said, and said successfViUy, that sucli concession and 
modification were shortly afterwards entirely de{)artedfrom, 
both on the part of the Presi lent and Congress, by subse- 
quent legislation. 

By the act of twelfth of Marcli, 180:5, (12 U. S. Stat., 820, 
ch. 120,) provision is made for the ai)poiiitment of special 
agents by the Secretary of the Treasury to receive and collect 
captured and abandoned property in States, &c., designated 
by the proclamation of the President of July 1, 1862, as 
being in insurrection. I'rovision is also made in said act 
for the sale and disposition of such i)roperty, and the pay- 
ment of the proceeds into the Treasury of the United States. 
And it is furtlier provided in this act that "any person 
claiming to have been the owner of any such abandoned or 
captured property may, at any time within two years after 
the suppression of the rebellion, prefer his claim to tie pro- 
ceeds tliereof in the Court of Claims ; and on })roof to the 
>sa'. irf.'acLiuii of said court of his ownership of said property^ 



99 

of his right to the proceeds thereof, and that he has never 
given any aid or comfort to the present rehellion, to receive 
the residue of such proceeds, after the deduction of any 
purcliase money which may liave been paid, together with 
the expenses of transportation and sale of said property, 
and any other lawful expenses attending the disposition 
thereof." 

From this provision it is seen that the only reined/j for a 
loyal citizen whose property had by mistake or otherwise 
been sold under the act was to apply to the Court of Claims, 
(and this only by virtue of said act,) and on proof of loyally 
and ownership, he might recover the net proceeds. 

And but for this provision in the act, tlie loyal owner 
would have been without any remedy whatever. Not only 
would his property have passed absolutely to the purchaser 
of the same from the Government, but he would have ha 1 
no claim whatever to any part of the proceeds arising from 
the sale of the same. 

Such being the law, then, in reference to loyal owners of 
captured or abandoned property, is it not manifest that the 
disloval have no risrht or claim whatsoever to either the 
property condemned and sold, or the proceeds thereof? 

And by reference to the act of .July 2, 18G4, (13 (J. S. 
Stat. 375, ch. 225, §§ 2 and 3,) it will be seen that pi-ovision 
is made for taking possession of abandoned houses and 
lands by the special agents authorized by the above act of 
18G3, and the first section of the latter act is extended so as 
to include the descriptions of property mentioned in ''An 
act entitled 'An act,' &c., and "An act entitled 'An act to 
su2)[iress insuri-ection, to punish treason and lebellion, to 
seize and confiscate the property of rebels, and for other 
purposes,' approved July seventeentli. eighteen hundred and 
sixtv-two." 



100 

And it is further provided, in the latter part of section 8 
of the aforesaid act of 1864, (13 U. S. Stat., 376,) as fol- 
lows : "That all property, real or i)crsonal, shall be le- 
garded as abandoned when the lawful owner thereof shall 
be voluntarily absent therefrom, and engaged either in 
arms or otherwise in aiding or encouraging the rebellion." 
From these provisions it is seen that the principle and 
provisions of the act of 1863, in relation to hotli captured 
and abandoned property are directly applied and extended 
to all property mentioned in the confiscation act of the seven- 
teenth July, 1862. And as confi-cation and sales, under said 
act of 1863, were in fee, even though the same might 
have belonged to loyal citizens, it follows, as a mat- 
ter of course, that Avhen the principles of that act were 
applied, as we have shown above, to property mentioned 
in the act of 1862, sales under the latter act were in any 
event, also in fee. 

For it is hardly to be supposed that Congress intended to 
confiscate loyal citizens" property in fee, as stated above, 
and only forfeit the life estate of rebels and traitors and 
enemies. To do so would be to punish loyalty with greater 
severity than disloyalty. To do so would be to punish the 
innocent and reward the guilty. To do so would be to dis- 
courage loyalty and to hold out a premium to insurrection 
and rebellion. A construction that would lead to such ab- 
surdities and such unjust results cannot receive the counte- 
nance of any court. 

AVe therefore conclude that whatever might have been the 
scope and object of the joint resolution, it was repealed by 
reason of the incompatibility of subsequent acts with the 
same. For if the resolution be held to repeal or modify the 
act of 1862 by implication as to confiscation, the applica- 
tion of the like rule and principle must make the subse- 



101 

quent acts to which we have referred entirely abrogate the 
resolution, as confiscations by the latter acts are and were 
intended to be in fee. 

In any and every possible view, then, we think it clearly 
established, both on the score of authority and subsequent 
legislation, that confiscations in fee, under the act of 1862, 
are legal and valid, and this more especially so after the 
passage of the captured and abandoned property acts of 
1863 and 1864. 

DECREES IN FEE. 

X. Condemnations in fee not void, but only voidable, even if 
only a life estate ivas confscahle. 

The district and circuit courts of the United States, 
though of limited jurisdiction, are not inferior courts in the 
teclmical sense of that term. Kennedy v. Georgia State 
Bank, 8 Howard, 586 ; Ex parte Watkins, 3 Pet., 193; 
Chemung Bank v. Judson, 4 Selden, 254 ; Wright v. Marsh, 
2 Iowa, 94 ; Wood v. Moran, 1 Sum., 580 ; Skilleru's Exs. 
V. May, 6 Cranch, 267; McCormick v. Sullivan, 10 Wheat., 
199 ; Baldwin v. Hale, 17 J. R., 272 ; Reed v. Vaughan, 
15 Missouri, 137, 141-2 ; Rowan v. Holcomb,16 Ohio, 463, 
465 ; Thompson v. Lyle, 3 Watts & Serg., 1G6. 

They are to be regarded and considered as domestic courts, 
of superior and general jurisdiction as to all matters over 
which they are by the Constitution and laws of the United 
States invested with jurisdiction and authority. Gillett v. 
Powel, 1 Spear's Eq. R., 142, 144; Ex parte Hall, 5 Ne- 
vada, 158 ; Adams v. Way, 34 Cal., 413 ; Reed v. Vaughan, 
15 Missouri, 137, 141-2 ; Bowan v. Holcomb, 16 Ohio, 463, 
465 ; and foregoing authorities. 

For it is w^ell settled that limitation of power does not 



102 

necessarily imply inferiority. Peacock v. Bell, 1 Saun- 
ders, 15. 

And tlie rule is, that where a general authority is given 
by statute to a superior court over all matters of a given 
class, the court, in the exercise of the new power or author- 
ity Ihus conferred, will not be regarded as an inferior court. 
Harvey v. Tyler, 2 Wallace, 328, 342 ; Voorhies v. Bankof 
the United States, 10 Pet., 449 ; Grignon's Lessee v. Astor, 
2 How., 319; Kemp's Lessees. Kennedy, 5 Cranch, 173 ; 
18 New York, 592 ; 28 lb., 653 ; 34 Cal., 412-13 ; Reed v. 
Vaughan, 15 Missouri, 137 ; Rowan v Holcomb, 16 Ohio, 463. 

In Rowan v. Holcomb, 16 Ohio R., 463, 465, the supreme 
court of Ohio says : " The district court is a court of record, 
created under the powers of the Constitution of the United 
States, having jurisdiction over matters of bankruptcy, by 
tlic acts of Congress. Matters of bankruptcy, by the act, are 
conferred upon the district court as a part of its general 
jurisdiction ; and in principle its orders of final discharge 
may be pleaded precisely as the judgments and decrees of 
any court of general jurisdiction." 

And in Reed ik Vaughan, 15 Missouri R., 137, 141, Mr. 
Justice Scott said : '' The courts of the United States, though 
possessing a limited jurisdiction, yet, in the intendment of 
law, s'and upon the same footing as courts of record of gene- 
ral jurisdiction. All the presumptions which are indulged 
in favor of superior tribunals of general jurisdiction are 
equally extended to the courts of the United States. In plead- 
ing a julgment or decree of one of these courts, there is no 
necessity for showing the facts which confer jurisdiction than 
in a plea of judgment of the highest tribunal known to the 
law. Their judgment cannot be impeached for error or 
irregularity in a collateral proceeding ; they can only be 



103 

vacated on motion in the courts in wnicli they are rendered, 
or reversed from error in an appellate jurisdiction." 

The district courts of the United States are courts of rec- 
ord, and are not to be regarded as inferior courts, so that 
their proceedings in causes not within their jurisdiction may 
be deemed void and questioned collaterally. Thompson v. 
Lyle, 3 Watts and Sergeant's R., 166. 

At page 168 of the above authority Kennedy, J., says : 
'■ Though the district court of the United State's be one of 
those tribunals which Congress under the Constitution has 
established, and, in reference to the Supreme Court, thereby 
directed to be established, is denominated an inferior court, 
yet I take it that neither the district courts nor the circuit 
courts of the United States are of inferior jurisdiction, at 
least not so as to render their process and proceedings in 
causes, without their jurisdiction, absolutely void. See Stan- 
ley vs. The Bank of America, 4 Dall., 11 ; McCormick vs. 
Sullivan, 10 Wheat., 102; 1 Kent's Com., 303." S. P. 
Kemp's Lessee vs. Kennedy, 5 Cranch, 1'73. 

Such being the character of the courts of the United States, 
it follows that even if the joint resolution was a modification 
of the confiscation portion of the act, so as to limit the con- 
fiscation of enemies' property, under th3 same, to a mere 
life estate, (and even were the resolution not repealed by 
implication by the provisions of the captured and abandoned 
property acts of 1863 and 1864,) still, as the district courts 
of the United States had jurisdiction of the subject-matter 
of confiscation under the act of l^th July, 1862, and a con- 
sequent right to condemn the property in some form, (either 
in fee or for life,) the condemnation in fee is not void in any 
event, but at most only voidaNe. Butler vs. Potter, 17 J. 
R., 145 ; Knowles vs. Muscatine, 20 Iowa, 249 ; Easton vs. 
Calender, 11 Wend., 90, 95 ; Henderson vs. Brown, 1 Caines' 



104 

R., 102 ; Grignon's Lessee vs. Astor, 2 How., 341 ; Griffin 
vs. Mitchell, 2 Cow., 349 ; Adkins vs. Bremer, 3 Cow., 209 ; 
Vail rs. Owen, 19 Barb., 26; Kemp's Lessee vs. Kennedy, 
5 Cranch, 113. 

"It is only where a judge or court has no jurisdiction of 
tlie subject-matter of the proceeding or action in wliich an 
order is made or judgment rendered that the order or judg- 
ment is wholly void." Hobart vs. Frost, 5 Duer, 673. 

In the case of Butler vs. Potter, 17 J. R., 145, the court 
says: "The justice had jurisdiction to give judgment for 
costs ; although he was limited as to the amount, and gave 
judgment for m re than he ought, it was an erroneous, not 
a void, judgment. The case of Prigg v. Adams, (2 Salk., 674,) 
is in point," * * * " The distinction is this : Where 
the justice has no jurisdiction whatever, and undertakes to 
act, his acts are coram nonjadice, but if he has jurisdiction, 
and errs in exercising it, then the act is not void, but void- 
able only." 

In Hendeison v. Brown, 1 Caine's Rep., 102-3, where 
assessors were sued in trespass for assessing a theatre as a 
dwelling-house, Mr. Justice Kent said : "I distinguish this 
case from those cases in the Englisli books, where the asses- 
sors and collectors of their land-tax have been held responsi- 
ble. The assessors had no authority at all over the subject- 
matter which they included in the tax. Here the theatre 
was required to be assessed by the assessors ; if a dwelling- 
house, then as such ; if not a dwelling-house, then as a lot of 
ground, with due regard to the imjtrovcments thereon. * * 
The assessors had jurisdiction of the subject-matter. They 
were bound to assess that building in the one view or the 
other ; and in the exercise of that duty, it is nlleged and ad- 
mitted that they did not exercise their judgment duly. But 
this is very different from the case in which they were not 



105 

to exercise any judgment at all over the subject, in which 
they had stepped out of their path, and taken cognizance of 
a subject not at all delagated to them. In such an instance 
their proceedings would have been truly coram non judice, 
and they trespassers. Here the subject was by law 5?(6 judice, 
and the grievance is a mere error or mistake by them while 
in the exercise of a lawful jurisdiction." 

And in Easton v. Calendar, 11 Wend., 90, it was held, by 
Mr. Justice Nelson, that notwithstanding the trustees, in ap- 
portioning a school-tax among the taxable inhabitants, must 
apportion only the sum voted, and not include therein, in 
making the apportionment, i\\Q percentage allowed by law to 
the collector for collecting the tax, the tru-tec'^ who had 
made up the apporiionment upon the sum voted and the 
percentage, althi)ugh erroneous, were not liable in trespass 
for causing property to be sold in the collection of the tax. 

And the reason assigned for this decision was, that the 
trustees had jurisdiction of the subject-matter of the appor- 
tionment of the tax, and that, consequently, though their 
action in the matter in assessing more than the law allowed 
was erroneous, the assessment was not absolutely void, but 
only voidable, and therefore valid till reversed or set aside 
in the manner provided by law. 

In Knowles vs. The City of Muscatine, 20 Iowa R., 248, 
it was held that an order of a court establishing a road of 
greater width than was authorized by the statute was not 
void, but irregular or erroneous merely, and was valid until 
reversed. 

At page 249 of the above case, the court says: "The 
inquiry is, was the ordi-r void or erroneous merely? It ap- 
pears that the county court hadfidl and complete jurisdiction 
over the parties and the subject-matter. The order made was 
never appealed from, but remained in full force and virtue. 



106 

Under such circumstances, we incline to the opinion, and so 
hold, that the order was not void, but irregular or erroneous 
merely." 

Mr. Justice Miller, in Harvey vs. Tyler, 2 Wall., 328, 346, 
in answer to the objection that the judgment exonerating 
land for taxes accrued after the passage of the statute was 
null and void, because the act only authorized an exemption 
for taxes accrued before the passage of the act, said : "If 
this were true, we do not feel sure that, under the principles 
just considered, it would invalidate the judgment of the 
court. It would be a mistake as to the law, which would 
make the judgment enoneous ; but would it, therefore, be 
void ?" 

And in Grigon's Lessee v. Astor, 2 How., 319, 340-1, 
Mr. Justice Baldwin, in speaking of the foi'ce and effect of a 
judgment and the protection of purchaser under the same, 
well said : "A purchaser under it is not bound to look be- 
yond the decree ; if there is error in it of the most palpable 
kind, if the court which rendered it have, in the exercise 
of jurisdiction, disregarded or misconstrued the plain pro- 
visions of the law wliich gave them power to hear and deter- 
mine the case before them, the title of a purchaser is as 
much protected as if the adjudication would stand the test 
of a writ of error." 

From this consideration of the authorities it is evident 
that confiscations in fee cannot, in any event, be regarded as 
void, but only voidahJe. 

And this distinction is of the greatest importance. For 
if a reversal should ever be had on any ground in any case, 
it is of the utmost importance, for the protection of bona 
fide purchasers at judicial sales as well as the protection of 
the officers of court, that the reversal should be (as we have 
no doubt but that it will be) placed on the proper ground — 



107 

that of voidable or erroneous and not void decrees. For if 
the decrees were held void the sales under the same would 
he null, even as to bona fide purchasers, and all the officers 
of court lible as trespassers. A conclusion whicli would lead 
to such results it is believed will never be reached by any 
court, when there can be no doubt but that the court had 
jurisdiction of the subject-matter of confiscation and only 
erred, if at all, in the construction of the law as to 
whether a fee on a life estate should be condemned. 



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